Charged with refusal to provide a breath sample? We can help

Individuals are often unaware of their obligation to provide a breath sample following a lawful demand by a police officer. If a police officer makes a lawful demand and the individual fails to provide a sample or refuses to provide one, they may be charged with a criminal offence which carries the same mandatory minimum punishments as impaired driving and driving over the legal limit.

Our team will work with you to examine every aspect of the evidence and craft the appropriate defence for your situation.

Breath Test Refusal Charges

You may be charged with refusing or failing to provide a breath sample under two circumstances. The first is if you refuse or fail to provide a sample into an Approved Screening Device. This is the handheld device carried by officers at the roadside.

The second is refusing or failing to provide a breath sample into a breathalyzer or intoxilyzer at the police station.

Refusing to provide a sample or failing to do so, is a criminal offence with serious consequences.  As such, we employ our collective experience and knowledge in defending your rights and challenging the prosecution’s case against you.

What is the best defence for a refusal charge?

Each case has an entirely unique set of circumstances and it is therefore imperative that we examine the evidence in your case before we can answer this question.

The first step is to gather all the evidence in your case. We request all the evidence in the possession of the police and prosecution. In addition,  we work with our clients to ensure we gather all evidence in their possession.

Once all the evidence is gathered, we will employ our collective knowledge and experience to determine if any defences arise from the evidence we have collected.

We will then meet with you to discuss your options and ensure you understand fully the implications of any decision you make.

Crafting a defence in breath test refusal cases is at times extremely technical and often depends upon:

  • The actions of the police during the stop and arrest process;
  • The equipment used by the arresting officer(s);
  • Defending your constitutional rights; and
  • Exploring any health concerns that prevent you from providing a sample

Possible defences include:

  • The demand was not lawful: police did not meet their obligations when asking for a sample
  • The machine was not working properly and the breath sample registered as a failure
  • You have a medical condition that prevents you from blowing hard enough to give a sample

We will look for weaknesses, inconsistencies or gaps in the evidence.We ensure that our collective efforts and knowledge are employed in every case to achieve the best possible outcome.

When can police ask me for a sample of my breath?

There are two types of breath demands.

The first is a demand made at the roadside into a handheld device called an Approved Screening Device.

  • The police may make this demand with reasonable suspicion that the driver is under the influence of drugs.
  • Alternatively, the police may employ a new provision in the Criminal Code which allows them to make the demand with no grounds. This is called a Mandatory Alcohol Screening Demand.

The second is a demand to provide a breath sample into a breathalyzer machine. This test is done at the police station into a machine that estimates the concentration of alcohol in your blood.

If an officer makes a lawful demand and you fail to provide a sample, you will be charged with a criminal offence. This applies even if you are convinced that you are under the legal limit.

Can I speak to a lawyer before providing a sample?

This is a complicated question and often turns on the facts of your particular case.

At the roadside you are generally required to provide a sample into the Approved Screening Device without the benefit of speaking to a lawyer.

But you may be entitled to speak to a lawyer if an Approved Screening Device is not present at the scene and you are required to wait for one to arrive. Depending on the circumstances, you may have the right to speak to a lawyer and the police’s failure to inform you of that may be a breach of your Charter rights.

Once you arrive at the police station and you are required to provide a sample of your breath into a breathalyzer machine, you are entitled to speak to a lawyer before providing the sample.

Many cases turn on issues revolving around the right to speak to a lawyer prior to providing the sample.

Our team of lawyers can examine your case to determine if your right to speak to a lawyer was infringed upon.

If we can identify a breach of your Charter rights, we can ask that the evidence against you be excluded from the trial.

Penalties for refusing a breath test

There can be serious immediate and longer-term consequences of refusing a breath test.

In fact the penalties for breath test refusal are the same as if you are convicted of driving over 80 or impaired driving.

In addition, you can be convicted of both refusing to provide a breath sample as well as impaired operation.

If you fail or refuse to provide a breath sample, your license will be suspended for 90 days, your vehicle will be impounded for 7 days and you will be facing criminal charges.

If you are convicted of failing or refusing to provide a sample, the conviction can result in:

  • Loss of your driver’s licence for at least a year
  • A minimum fine of $1,000.
  • A criminal record

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