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
Conspiracy to traffic 10+ kg cocaine
Impaired driving, Over 80
Possession of a prohibited firearm with readily accessible ammunition
Child pornography cases
Possession and importation of child pornography
Domestic Assault Charges
Domestic assault causing bodily harm
Fraud/White collar charges
All Charges Were Stayed
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Excellent and precise communications skills. Very clear on what my position was, what the legal actions available were, and what his strategy would be to address the situation. And precise execution. He assured me of my rights and position every step of the way. Made me feel totally comfortable with my rights, and let me continue with my life. Highly recommended.
Fady recently represented me in a legal matter during one of the most difficult periods of my life. From the onset, Fady was professional, supportive and reassured me that he would do all he could to ensure a positive outcome, which was achieved. Thank you to Fady and team for your hard work and support!
Solomon is an excellent Lawyer, top in the field of firearms legislation. Would definitely invest time and money for his expertise. Thank you Solomon for first, taking my case and second, supporting a injured veteran.
The night I was charged with assault after a night out drinking was the worst night of my life. As a police officer, an off duty assault conviction would have jeopardized my career. I have worked closely with lawyers my entire nine year career. Either directly with Crown on a case or through cross-examination by defence counsel and after a few minutes of speaking with Solomon shortly after my arrest I knew his knowledge and ability to articulate legal principles were unmatched. He spent nearly an hour on the phone with me gathering facts and providing clear instructions. Throughout the process he kept me updated as to what was going on and I was extremely impressed with his handling of my case. Solomon did his homework on the accusers and witnesses and prepared an unbelievable defence which ultimately led to the charge being dropped on the first day of trial and allowing me to continue my career as a police officer. I’d recommend Solomon to anybody who is in need of expert legal defence.