Refusing a Breathalyzer in Ontario

The short answer

Refusing or failing to give a breath, blood or drug sample when police lawfully demand it is a crime under s. 320.15 of the Criminal Code. A first conviction brings a minimum fine of $2,000, which is the same as a very high reading. Ontario also suspends your licence for 90 days at the roadside.

Many people refuse because they think it will avoid a worse result. It rarely does. A refusal also leaves no test result to challenge, which removes some of the most common defences in impaired driving cases.

What the Crown must prove

Penalties

• First refusal: The minimum is a $2,000 fine.
• Second offence: The minimum is 30 days in jail.
• Third or later: The minimum is 120 days in jail.
• Maximum: The maximum is 10 years by indictment, or 2 years less a day on summary conviction.

A conviction also brings a court driving prohibition and an Ontario suspension of at least 1 year. If you refused while knowing you were in a collision that hurt or killed someone, the maximums are higher (s. 320.15(2) and (3)).

What counts as a reasonable excuse

Courts accept a reasonable excuse only in narrow situations. Examples include:

• A real medical or physical problem: A condition made it impossible to give a sample, and medical records are key evidence.
• A demand you could not understand: For example, a language barrier prevented you from understanding what police wanted.
• A device or procedure problem: The device or the procedure failed in a way that was not your fault.

Wanting to call a lawyer first is usually not a reasonable excuse at the roadside, where a sample is required right away. At the station, however, you have the right to speak to a lawyer before giving samples.

When the demand itself was unlawful

If the demand was not lawful, there is no offence. A demand may be unlawful in situations like these:

• Police had no reasonable suspicion, and the stop was not a lawful mandatory screening stop.
• Police did not have an approved screening device at the roadside.
• Your Charter rights were breached, for example because police did not tell you about your right to a lawyer at the station.

Refusal vs failing the test

A refusal carries the same minimum fine as a reading of 160 or more. It also counts as a prior offence for any future charges. In addition, because there is no test result, the usual defences about breath testing procedure are not available.

For example, someone with a borderline reading of 85 may have a defence based on the testing procedure. Someone who refused has no reading to challenge at all.

The evidence in a refusal case

Refusal cases often depend on exactly what was said and done. The Crown usually relies on the officer's notes, the wording of the demand, cruiser or station video, and any audio of the conversation. Video is especially important, because it can show whether you understood the demand, whether you genuinely tried to blow and whether police explained the consequences of refusing.

What happens after you are charged

1. Roadside penalties: Ontario imposes a 90-day suspension and a 7-day impoundment right away.
2. Disclosure: The Crown provides the officer's notes, the video and any device records.
3. Review of the demand: Your lawyer reviews whether the demand was lawful and whether you had a reasonable excuse.
4. Resolution or trial: The case either resolves or goes to trial on those issues.

Effects beyond the sentence

A refusal conviction is a criminal record, and it is treated as seriously as a high reading by insurers and employers. Because the maximum is 10 years by indictment, it can also make a permanent resident inadmissible for serious criminality, and it can cause problems at the U.S. border.

Possible outcomes

What to do now

• Gather any medical records that could explain difficulty giving a sample, such as records of asthma or another breathing condition.
• Write down exactly what police said when they made the demand and what you said in response.
• Do not drive until your suspension has ended and your release papers allow it.

Refusals at the station

Some refusals happen at the station rather than at the roadside. By then, you are entitled to speak to a lawyer before deciding whether to give samples, and police must give you a real chance to do so. If police pressed for a sample before you had that chance, or misstated the consequences of refusing, those facts can be important at trial. A refusal after legal advice is treated more seriously, because the court is more likely to find that you understood the demand.

Effects on future charges

A refusal conviction counts as a prior offence if you are charged again. That means a later impaired driving or refusal charge could bring a minimum jail sentence if the Crown serves notice of increased penalty.

How we can help

We can review the demand, the video and the officer's notes to see whether the demand was lawful and whether you had a reasonable excuse. Call (647) 223-1980 for a free consultation.

Frequently asked questions