The Police Vehicle in Your Rearview Mirror

You hear the police siren blaring. Your heart races as the officer walks up and says: “I’m demanding you provide a sample of your breath into an approved screening device.”

In that split second, you have a choice: blow or refuse. Many people think refusing is safer. Under Canadian law, that assumption can be dangerously wrong.

If you’ve been stopped by police in the GTA and asked for a roadside breath sample, your next decision matters. Refusing a breathalyzer in Ontario is its own criminal offence with penalties that can be harsher than “over 80.” Below, Toronto criminal defence lawyers at Daniel Brown Law explain seven key truths about refusal charges—what they are, how they’re proven, and where real defences can arise. This article explains, in plain language, how the refusal offence works and why the law pushes drivers to comply. It isn’t legal advice—just a clear guide to the rules, penalties, and common issues that decide these cases.

What Happens at the Roadside?

The decision to refuse a breathalyzer demand is not a simple “yes” or “no.” It triggers a separate and distinct criminal charge with its own unique set of rules, penalties, and defences. The following points break down the most impactful and often misunderstood aspects of refusing a breathalyzer demand in Ontario.

A police officer who reasonably suspects you have alcohol in your body can demand a sample into an Approved Screening Device (ASD) “as soon as practicable.” In that high-pressure moment, many drivers wonder: Should I refuse? The following seven points show why that choice often makes things worse—and where strong defences can still be built.

The 7 Things You Absolutely Must Understand Before Considering a Refusal

Refusing a breath demand is its own criminal charge with its own penalties and defences. Here are the key points most people miss.

1) The Penalty for Saying “No” Can Be Harsher Than Blowing Over

Here is perhaps the most counter-intuitive fact about refusing a breath sample: for a first-time offender, the minimum fine for refusal is higher than the minimum fine for blowing over the legal limit, unless your blood alcohol concentration (BAC) is exceptionally high. The law is deliberately designed this way. This is not an oversight; it is an intentional legislative choice. The law is structured so that the higher penalty removes any incentive to fail or refuse to comply with a demand. The aim is to punish the act of refusal so severely that compliance becomes the more logical option from a purely financial perspective. This directly contradicts the common assumption that refusing is the ‘safer’ legal bet to avoid a drinking and driving conviction.

Offence	Minimum Fine
Refusal to provide breath sample	$2,000
80–119 mg/100 mL	$1,000
120–159 mg/100 mL	$1,500
160+ mg/100 mL	$2,000

Refusal also triggers automatic licence suspensions and other consequences similar to impaired-driving offences.

2) You’re Not Charged With Impairment; You’re Charged With Disobedience

When you are charged with refusing a breath sample, the Crown prosecutor’s job is not to prove you were drunk. The legal battleground shifts completely. You are being charged with disobeying a lawful order from a peace officer. This distinction is fundamental to understanding the nature of the offence. While the refusal offence is part of the same statutory regime, it is different from other drinking and driving offences in substance. Culpability for the refusal offence is based on disobedience with lawful compulsion, whereas culpability for an “over 80” offence is based on driving with a blood-alcohol concentration over the legal limit. This means the focus of the trial will not be on your level of sobriety, your driving pattern, or how many drinks you had. The central question is whether a peace officer gave you a valid, lawful demand and you failed or refused to comply with it. Your state of mind regarding impairment is secondary to your act of non-compliance. A refusal case isn’t about whether you were impaired. It’s about disobeying a lawful police demand. The Crown focuses on whether a valid demand was made and whether you failed or refused to comply. Your level of intoxication is usually secondary.

3) An Officer’s Mistake Can Be Your Best Defence

Because refusal is about lawful compulsion, the validity of the demand is critical. The Crown must prove, beyond a reasonable doubt, that:

The demand was made by a peace officer;
The officer had a reasonable suspicion you had alcohol in your body (for an ASD demand);
The demand was made as soon as practicable.

If any statutory precondition wasn’t met—no objective grounds, improper timing, or other defects—the police officer’s legal demand for a breath sample may be invalid, and the refusal charge can fail. You can raise these defects directly at trial; you don’t always need a separate Charter application to do it.

4) Most “Reasonable Excuses” Are Not Reasonable in Court

You can defend a refusal if you had a “reasonable excuse”, but courts set a high bar and you must prove it on a balance of probabilities. Excuses that usually fail:

“I was too drunk to comply.”
“I thought I could speak to a lawyer first at roadside.”
“My lawyer told me not to blow.”

A genuine excuse typically involves a real, documented inability to provide a sample at that moment (for example, a serious medical issue), often backed by medical evidence. Simply saying you have a medical condition is not enough.

5) The Law Just Got Crystal Clear on Your State of Mind

For years, courts debated what mental state the Crown needed to prove. Parliament ended the debate by making legislative changes to the Criminal Code the Crown Attorney only has to show you knew a demand had been made. It doesn’t need to prove you intended to refuse—just that you knew and didn’t comply.

6) You Can’t Take It Back: A Refusal Is Final

Once you clearly refuse—“I’m not blowing”—the offence is complete. Changing your mind minutes later usually won’t undo it. Whether your conduct amounts to an <strong”>unequivocal refusal is a factual question the judge must answer at your trial. In some cases, silence wasn’t enough; but a clear verbal refusal almost always counts.

7) Your Roadside Statements Can Be Used Against You (In a Refusal Case)

Normally, what you say to a police officer at roadside before you’re advised of your rights can be hard to use against you for impaired driving. Refusal is different. The words “I refuse” are the act that completes the offence. They are typically admissible to prove the charge.

Conclusion:

Refusing a breath sample carries serious, often misunderstood consequences. The law is built to encourage compliance and punish refusal, sometimes more than the drinking-and-driving offences it investigates. In these cases, the officer’s procedure matters as much as the driver’s actions. A choice you make in seconds on a Toronto roadside can affect you for years. It isn’t about guessing right in the moment—it’s about understanding the rules before you face them.

How Daniel Brown Law defends refusal charges

Demand validity audit: analyze grounds, timing, ASD availability, and statutory compliance.
Evidence integrity review: notes, video, disclosure gaps, and officer memory.
Medical/physical capability: where appropriate, obtain expert support for true “reasonable excuse” arguments.
Charter litigation (when warranted): unlawful detention, delay, or rights violations that may exclude evidence.
Negotiation & resolutions: where facts allow, pursue withdrawals or reduced outcomes.

FAQs: Refusing a Breath Sample in Ontario

Is refusing better than blowing over?: Usually no. Minimum fines for refusal are often higher, and the collateral consequences are severe.
Do I have the right to call a lawyer before a roadside ASD test?: Generally no. The right to counsel typically arises upon arrest/detention for further testing—not for the initial ASD demand.
Can medical issues be a “reasonable excuse”?: Sometimes, but the standard is strict and usually requires medical proof tied to the exact testing moment.
Can I change my mind after saying “no”?: Once a refusal is unequivocal, the offence is complete. Changing your mind moments later rarely helps.

Immediate penalties under the Highway Traffic Act

License suspension: 90-day administrative suspension
Vehicle impoundment: 7-day impoundment
Administrative penalty: $550 fee
Reinstatement fee: $275

Criminal penalties and other consequences of refusing to provide a breath sample

Criminal record: A permanent criminal record, which can impact employment, travel (including to the US), and immigration status
Fines: A mandatory fine of at least $1,000
License suspension: A longer license suspension is likely in addition to the initial administrative one
Ignition interlock device: required to install an ignition interlock device
Mandatory programs: Participation in a Back on Track program or mandatory alcohol counseling
Insurance: Significantly higher insurance rates

What should I do after being charged?: Get legal advice immediately. Early strategy and disclosure requests can significantly affect the outcome. Call 416-297-7200.

Talk to a Toronto criminal lawyer now

If you’ve been charged with refusing to provide a breath sample (Criminal Code s. 320.15(1)) anywhere in the GTA, timing matters. Speak with an experienced defence lawyer at Daniel Brown Law to understand your options and protect your record. Phone: 416-297-7200. Website: https://www.danielbrownlaw.ca/. Office: Downtown Toronto — serving Toronto, Peel, York, Durham, and across Ontario. This article is for general information only and is not legal advice. Every case turns on its own facts.

Refusing a Breath Sample in Toronto: 7 Surprising Truths