Failure to comply

Failure to Comply with a Demand (Failure/Refusal to Blow)

This is an offence that can be committed in two ways, failure or refusal to comply with a demand is a criminal offence under s.254(5) of the Criminal Code. This section states that anyone who, without reasonable excuse, fails or refuses to comply with any demand made under this section of the code may face criminal charges.

Penalty

The maximum penalty for failure/refusal to comply is five years’ imprisonment, although there is a mandatory minimum sentence of one year driving prohibition as well as a $1,000 fine. Please note, this is the same penalty for impaired driving as well as over 80.

What You Should Know

It is important to know that there are very few defences to the charges of failure/refusal to comply. There is also no requirement for the officer to explain all the consequences of a non-compliance. Faking attempts to provide a sample may result as a failure to comply, as well as a change of mind. When a person refuses and almost immediately changes their mind about giving a sample, this may not result in a refusal, however, waiting five minutes could be seen as failure to comply. There is no requirement on the officer to give a ‘second chance’ to the accused. All that is necessary is to show that the accused person did not follow a demand.

Applicable Legislation s.254(1) In this section and sections 254.1 to 258.1

(1) Analyst means a person designated by the Attorney General as an analyst for the purposes of section 258.

Approved container means

  • In respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order the of Attorney General of Canada, and
  • In respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada.

Approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada.

approved screening device means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada;

Evaluating officer means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1).

Qualified medical practitioner means a person duly qualified by provincial law to practice medicine.

Qualified technician means

  • in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and
  • in respect of blood samples, any person or person of a class designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258.

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railways equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug or with either or both of paragraphs (a) and (b), in the case of alcohol:

  • to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
  •  to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

  • to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and

  • if necessary, to accompany the peace officer for that purpose.

(4) Samples of blood may only be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking samples would not endanger the person’s life or health.

Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Only one determination of guilt

(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction.

The Next Steps

If you or someone you know has been charged with failure or refusal to blow, Mr. Afolabi can help.

Lakin Afolabi is a determined, dedicated lawyer serving Windsor and area. He has obtained several outcomes in his favour in the past, and is available to help you anytime.

Contact Lakin Afolabi now for a consultation.
Call anytime, day or night, (519)-495-0870