Criminal Law
Refusal or Failure to Provide a Breath Sample
Criminal Law
Refusal or Failure to Provide a Breath Sample
It is wrong to assume that you can evade the legal consequences by refusing to cooperate when a police officer requests you to take the breathalyzer test. Any DUI lawyer will tell you that you will be charged with a criminal offence for refusing to provide your breath sample for the test. In fact, it is treated the same as impaired driving, leading to the same penalties.
What is a breathalyzer test?
A breathalyzer test is one of the standard tests used to check if the person operating the vehicle is impaired by consumption of alcohol beyond the legal limits. From the breath sample, the device will calculate the blood alcohol level, and if it is above the legal limits, the police officer can initiate the necessary legal actions. Other such tests include field sobriety tests and blood tests.
Drivers are legally obligated to cooperate with the test.
Breathalyzer testing is established through the legal framework of Section 48 of the Highway Traffic Act and Section 320.15 of the Criminal Code. This gives police the authority to do spot checks on any drivers randomly. They are not required to explain the reasons for asking you for the sample. However, you are legally obligated to cooperate with the authorities in providing the sample.
While it is perfectly legal for the driver to remain silent throughout the process, this might raise further suspicions and lead to more tests, including a blood test.
Penalties for refusal under the Highway Traffic Act:
- Fine: $550.
- Immediate Roadside License suspension: 90 days.
- Vehicle impoundment: 7 days.
- License suspension: 1 year.
- In case of a second offence within 10 years: Mandatory participation in an education program.
- In case of a third offence within 10 years: Mandatory installation of an ignition interlock device in the vehicle for a minimum of 6 months. The device will screen your breath for alcohol content and, if detected, will prevent the engine from starting.
Penalties under the criminal code:
- Fine: starting from $2000.
- License suspension: Minimum 1 year.
- Imprisonment for serious offences: up to 10 years.
- Criminal record.
- Mandatory participation in an education program.
- Mandatory installation of an ignition interlock device in the vehicle.
- In case of a second offence within 10 years: License suspension for 3 years. 30 days of jail time.
- In case of third or subsequent offences: 120 days of jail time.
It is important to note that the particular circumstances of the case and the history of prior convictions of the driver will decide what the final penalties and sentencing will be.
Further implications of a conviction in refusing a breathalyzer test
Higher insurance rates
Such a conviction is treated on the same level as an impaired driving conviction, and your insurance premium rates will go up. Also, some insurance providers might even refuse to provide coverage.
Effects on your professional life
Certain employers are not likely to hire people with such a conviction, especially if the work involves driving or taking care of vulnerable individuals.
Travel impediments
Some countries have visa restrictions against anyone with a criminal conviction. This might pose some challenges in your personal life as well.
Criminal record
As mentioned above, a criminal record can affect you in multiple ways in your professional as well as personal life. This is why it is important that you employ the services of a capable DUI lawyer to avoid the criminal record altogether, if possible.
How can a DUI lawyer help you?
Legal advice:
If you are charged with the refusal to cooperate with the breathalyzer test, you should know that it is a criminal offence on the same level as impaired driving. You need to immediately get in touch with a DUI lawyer for legal advice and explore all the legal options available to you.
Checking the procedures followed:
Your DUI lawyer will also check if the police officers followed the correct protocols and procedures in demanding your cooperation with the breathalyzer test.
Checking the reliability of the device:
Was the breathalyzer device properly serviced, maintained, and calibrated? Your lawyer will check the records to ensure the reliability of the device in providing accurate results.
Gathering the evidence:
Your lawyer will build the case by collecting witness statements, police reports, medical records, and CCTV footage to challenge the charges laid against you.
Negotiating on your behalf:
In some cases, it might be possible to negotiate and get the charges reduced or dropped. Your lawyer will examine these possibilities and protect his client’s interests during the negotiations.
Representation at the trial:
Your lawyer will prepare for the case and employ a strong defence strategy at the trial to ensure a favourable outcome for you.
We can Help
If you are dealing with criminal charges for refusal to take a breathalyzer test, get in touch with our criminal defence lawyers for legal guidance. Our experienced DUI lawyers will ensure that your rights are protected and that you receive a fair trial. Get in touch with our legal team today for a consultation.
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Frequently Asked Questions
Can a police officer ask for a breath sample without providing a valid reason?
Yes. Under the latest federal and provincial laws, even when you are driving properly, it is still legal for a police officer to stop you and ask you for a breath sample.
Is it allowed for me to consult my lawyer before cooperating with the test?
No. This might have been the case before 2018. The laws have been updated, and you no longer have the right to delay the breathalyzer test for this reason. You must first comply with the test, and then you may call your lawyer for legal advice.