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Refuse to Provide a Sample and Refusing a Breathalyzer Test

When Experience Matters

Once someone is flagged for a DUI, the police have a legal obligation to inform the driver about the legal implications as well as penalties should the driver fail to provide a breath sample.

Refusing Breathalyzer Tests

If you’re operating a vehicle and the police has requested a sample of your breath, it is in your best interest to comply because:

  • You may pass the test
  • Breath tests will give you an issue to dispute (if they were not administered correctly)
  • A low reading can make you eligible for reduced charges

Should you refuse to take the breath test, issues may arise with your defence such as:

  • Having to prove that there is a lawful reason to refuse
  • Having to question if the police have the grounds or the rights to demand a breathalyzer test
  • Having to explain and disprove that you failed to provide a breath test sample to the officer
  • Having to prove that you did not understand the full ramifications of refusing to give a breath sample.

Can You Refuse a Breathalyzer?

Note that is possible for a driver to refuse a breathalyzer test and that nobody can be physically forced to submit to one. With this said, the police can charge the driver with “Refusing a Breathalyzer Test” which is a criminal offence. More so, refusing a breathalyzer test and failing a breathalyzer test carry the same penalty.

When Can the Police Demand a Breathalyzer Test?

Lawful grounds and authority are required for the police to demand a breathalyzer test.

Examples of situations when the police officer can demand a breathalyzer test are as follows:

  • When the officer observes an impaired driver operating a motor vehicle lacking care & control
  • When the police smell the presence of an alcoholic odour from the driver’s breath
  • When the driver admits to consuming alcohol before driving after being asked by the police officer
  • When the police officer has probable and reasonable grounds to believe that the driver has an impaired ability to drive because of consumption of an alcoholic drink resulting in an over 80.
  • When there is bodily harm or death involved

Note that the driver must supply a breath sample for the breathalyzer as a way to comply with the demand of the police officer. Failing to comply with a lawful demand is considered refusing a breathalyzer test and is charged as a criminal offence.

How to Fight Charges of Refusing Breathalyzer Test

The police can sometimes make mistakes when demanding a breath sample or when administering the breathalyzer test. These mistakes can be used by the defence to dismiss the charge or reduce the penalties for the accused. Remember that facing a criminal charge doesn’t make one guilty of the charge against them.

Before someone can be convicted for impaired driving, certain issues have to be proven. Examples of which are:

  • Proving that the police have a legal right to make a demand for a breathalyzer test
  • Proving that the test was clearly explained by the police to the driver
  • Proving that the driver completely understood the police
  • Proving that the accused had a way to seek or contact a lawyer
  • Checking if the police abused the rights of the accused at any stage of the process

Please note that the police have a legal responsibility to make sure that the following are observed when they demand a breathalyzer test:

  • Make sure that the driver fully understands what is going on
  • Make sure that the driver is aware of what they have to do
  • Make sure that the driver was given a reasonable opportunity to give a breath sample

The above are oftentimes not done properly. In the event that the police failed to give the driver an opportunity to give a breath sample, or failed to explain the procedure in a way that the driver can understand, or if the driver simply did not understand, then the defence can use the information stated above to their advantage.


If you have been charged with impaired driving in Canada, note that you have the right to be heard by a judge who will make an impartial decision based on the facts of the case. The judge will determine if the procedure for obtaining a breath sample was done properly. This responsibility is not for the police or the crown attorney to fulfill. Only the judge can say when someone is guilty of impaired driving.

Penalty for Refusing a Breathalyzer Test

As mentioned earlier, refusing a breathalyzer test carry the same penalty as failing a breathalyzer test. Penalties for refusing a breathalyzer test include:
  • Paying a fine between $1,000 and $2,000
  • Facing one-year license suspension
  • Having to install an ignition interlock device
  • Joining a Back on Track Program
  • Undergoing mandatory drinking and driving counselling
  • Having a criminal record for life
What is the Definition of “Refuse a Breathalyzer Test”?

First, the police must have reasonable grounds to believe that the following scenarios happened in the last 3 hours:


  • That a person committed an impaired driving offence as defined in section 253 of the Criminal Code
  • That the police officer may make a demand that the person should provide breath samples as soon as practicable
  • That the breath samples from the person will enable an analysis to determine the driver’s blood alcohol level as stated by a qualified technician’s opinion

If the person fails or refuses the breathalyzer test without a reasonable excuse considering all of the above under section 254.1 of the Criminal Code of Canada, then the person can face a charge of Refusing a Breathalyzer Test.

Calvin Barry Law Is Here to Defend You

Are you in need of a lawyer or are you seeking legal advice about impaired driving in Canada? Be sure to contact Calvin Barry Law. Our offices are open and ready to serve you. Everything discussed will be held with complete confidence and privacy. Do not hesitate to contact Calvin Barry Law if you’re looking for a Criminal lawyer in Toronto. We will be happy to answer your questions, review the documents related to your charge, inform you of what can be done for your defense, and respond to your other concerns.

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