Refusal to provide breath sample

FAILURE OR REFUSAL TO PROVIDE A BREATH SAMPLE

Failure or refusal to comply with a demand

If a person intentionally refuses or fails to comply with a lawful demand for a breath sample, he or she will be found guilty of an offence under section 254(5) of the Criminal Code of Canada.

What is a lawful demand?

There are two types of demands authorized by the Criminal Code. The first is often referred to as a roadside demand or an approved screening device (ASD) demand. The second is often referred to as a breathalyzer demand.

Roadside Demand or Approved Screening Device Demand

If a police officer believes on reasonable grounds that a person has operated a motor vehicle within the preceding three hours and that that person has alcohol in his or her body, the officer may make a demand that the person provide forthwith a breath sample. This breath sample will be analyzed by an approved screening device (ASD). If the ASD registers a “fail”, that indicates the person has alcohol in his or her body, but it does not indicate the concentration of that alcohol. Failing an ASD test may not result in criminal charges, unless the driver is a young driver or novice driver as defined by Ontario’s Highway Traffic Act. It is only upon determining the concentration of alcohol in the person’s blood that criminal charges may be laid.

Breathalyzer Demand

If a police officer believes on reasonable grounds that a person is committing either an impaired driving offence or an over 80 offence or has committed such an offence within the previous three hours, the officer may make a demand that the person, as soon as practicable, a sample of breath to determine the concentration of alcohol in that person’s blood.

Applicable Legislation – Criminal Code, s. 254

(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 railway 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 of 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.

(3.1) 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 paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument.

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

  • a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or
  • 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 whether the person has a drug in their body.

(4) Samples of blood may 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 the samples would not endanger the person’s life or health.

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

(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.

What is the maximum penalty for refusing to provide a breath sample?

The maximum penalty for refusing to provide a breath sample depends on whether the prosecutor proceeds by way of indictment or by way of summary conviction. If the prosecutor chooses to proceed by indictment, the maximum penalty is five (5) years in jail. If the prosecutor chooses to proceed by summary conviction, the maximum penalty is eighteen (18) months in jail.

It is important to keep in mind that the maximum penalty will change depending on whether the person’s operation of a motor vehicle had resulted in bodily harm or the death of another person. If there has been resulting bodily harm, the maximum penalty for an impaired driving offence is ten (10) years in jail. If there has been resulting death, the maximum penalty is imprisonment for life.

Applicable Legislation – Criminal Code, s. 255

(1) Every one who commits an offence under section 253 or section 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

  1. whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
  • For a first offence, to a fine of not less than $1,000,
  • For a second offence, to imprisonment for not less than 30 days, and
  • For each subsequent offence, to imprisonment for not less than 120 days, where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

(2.2)  Everyone who commits an offence under subsection 254(5) and, at the time of  committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

(3.2)  Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel,  aircraft or railway equipment caused an accident resulting in the death of another person, or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life.

 What are some defences to a charge of refusing to provide a breath sample?

The first step in defending against a charge of refusing to provide a breath sample is determining whether or not a valid demand was made by the officer. It is not an offence to refuse a demand that was made unlawfully. If the officer is making a demand for a roadside or ASD demand, the officer must have had reasonable grounds to believe the person had alcohol in his or her body. If the circumstances were such that the officer could not have formed a reasonable suspicion, the demand was not made lawfully and it is not an offence to refuse it. In the event that an officer is making a breathalyzer demand, the officer must have reasonable grounds to believe the person has committed an over 80 offence or an impaired driving offence within the preceding three hours. If the officer does not have reasonable grounds for such a suspicion, the breathalyzer demand is unlawful

Another way to defend against a charge of failing or refusing to provide a breath sample is to show the person did not intentionally fail or refuse to provide a breath sample. Sometimes a person is incapable of providing a breath sample despite attempting to give one. In such cases, the person will not be found guilty of an offence.

Another way to defend against this charge is to show the person had a reasonable excuse for failing or refusing to provide a breath sample. One example of a reasonable excuse is where providing a breath sample would result in a danger to the person’s health. Another example is where the demand resulted in unreasonable inconvenience. An example of this would be a case where the person has to be taken a very long distance to access the ASD or the breathalyzer.

Take the next step

If you have been charged with failing or refusing to provide a breath sample, your best approach to the situation is to consult with effective legal counsel. Lakin Afolabi is a criminal defence lawyer in London, Ontario, who has successfully defended many individuals charged with failure or refusal to provide a breath sample. Contact him today for a consultation.

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