Refusing a Breath Sample in Ontario

Yes. Refusing a breathalyzer in Ontario is a separate criminal offence — one with penalties that can exceed those for “over 80”. In Canada, it is a criminal offence to intentionally fail or refuse to comply with a demand to provide a police officer with a breath sample for the purpose of assessing the concentration of alcohol in the body of the driver of a motor vehicle. The offence is section 320.15(1) of the Criminal Code, and it carries the same maximum penalties as impaired driving and over 80.

You can physically decline, but doing so is itself a crime. A police officer who reasonably suspects you have alcohol in your body can demand a breath sample into an approved screening device, and since December 2018 an officer who simply has an approved screening device with them can demand one during any lawful stop, with no suspicion at all. Refusing that demand triggers a separate criminal charge with its own rules, penalties, and defences — plus an immediate 90-day licence suspension and a seven-day vehicle impoundment.

Usually no. Minimum fines for refusal are often higher, and the collateral consequences are just as serious. The minimum fine on a first refusal is $2,000; for over 80 it is $1,000 unless the reading is 120 mg or higher. The driving prohibition, the criminal record, the Ontario suspension, the ignition interlock requirement and the insurance consequences are the same either way.

With disobedience. When you refuse a breath demand, the Crown doesn’t have to prove you were drunk. The charge is about disobeying a lawful order from a peace officer. The trial won’t focus on your sobriety, your driving pattern, or how many drinks you had. The central question is whether a valid demand was made and whether you failed to comply. Your level of intoxication is secondary.

A person charged with refusing a breath sample in Toronto, Ontario may also be charged with impaired driving at the same time, because impaired driving can be proved on the officer’s observations without any reading at all.

Courts debated for years what mental state the Crown needed to establish, and Parliament settled part of it by writing the words “knowing that a demand has been made” into the section itself. So the Crown must prove you knew a demand had been made. Where the allegation is an outright refusal, that plus the refusal is the offence. Where the allegation is a failure — you tried to blow and no suitable sample was produced — the failure has to be intentional. A person who unintentionally fails to provide a sample is not guilty, because the charge requires a refusal or an intention to fail to provide the sample.

Generally no. The right to counsel typically arises upon arrest or detention for further testing — not for the initial approved screening device demand at roadside. That is because the roadside demand requires you to blow immediately. The position is different once you are arrested and taken to the station for breath tests on an approved instrument: there you must be informed of your right to counsel and given a real opportunity to use it, and being denied a private consultation with a lawyer before providing those samples has been held to be a reasonable excuse.

For a roadside screening test, effectively yes. Section 320.27(2) allows mandatory alcohol screening: where a peace officer has an approved screening device in their possession and is acting in the lawful exercise of a power — an ordinary traffic stop will do — they may require the driver of a motor vehicle to provide a sample immediately. No suspicion of alcohol is required. The suspicion-based demand in section 320.27(1) still exists alongside it, and the demand for breath tests at the station under section 320.28 needs the much higher standard of reasonable grounds to believe.

That can be fatal to the charge. A roadside demand requires you to provide the sample immediately, and in R. v. Breault the Supreme Court of Canada held that the validity of the demand requires the officer to have immediate access to an approved screening device — a person cannot be criminally liable for refusing to comply with a demand it was not actually possible to comply with. Where the officer had to radio for a device, the timing of everything that followed matters.

Yes. Section 320.27(1)(a) lets an officer with a reasonable suspicion demand that you immediately perform the physical coordination tests prescribed by regulation, and accompany them for that purpose. Failing or refusing that demand is an offence under section 320.15(1) in exactly the same way as refusing to blow. The same is true of refusing a drug evaluation or a blood sample demanded under section 320.28.

Sometimes, but the standard is strict and usually requires medical proof tied specifically to the testing moment. A medical condition that prevented the accused from providing a suitable sample — asthma or emphysema, for example — can mean there was no intentional failure at all. Medical grounds are also recognised as a reasonable excuse where performing the test would endanger the accused’s health, or where they were required to attend for medical treatment during the period when the officer wanted the test performed. Simply claiming a medical issue is not enough.

Determining whether an excuse is reasonable is always fact specific. What may be seen as reasonable in one case may not be held to be reasonable in another. Examples that have been held reasonable in some cases include: medical grounds; mental grounds, where the accused was so drunk or affected by drugs that he was unable to understand the nature of the demand or the effect of his refusal; denial of the right to consult with counsel in private prior to providing the breath sample; unreasonable inconvenience, such as being taken a very long distance for the test or where the test could not be validly performed within the time limits prescribed by law; the absence of grounds for the demand; and a breathalyzer machine that is not able to give an accurate reading, where the police insist on the test anyway.

Courts set the bar high, and the burden is on you to prove the excuse on a balance of probabilities. Excuses that typically fail are “I was too drunk to comply”, “I thought I could speak to a lawyer first at roadside” and “my lawyer told me not to blow”. A real excuse involves an actual, documented inability to provide a sample at that moment.

Once a refusal is unequivocal, the offence is complete. Changing your mind moments later rarely changes the result. Whether a refusal was unequivocal is a factual question for the trial judge, but a clear verbal refusal consistently counts.

That is a real defence. An unintentional failure to provide a breath sample can arise from a lack of comprehension of the instructions given by the police officer — because of the level of intoxication of the person being asked, or because of a language barrier between the officer and the accused. If the person did not understand the instructions given to them about providing a sample, they cannot be found guilty of the offence.

Yes. The machine receiving the sample of the driver’s breath may not have been operating properly, or there may have been an obstruction in the mouthpiece receiving the sample that made providing a suitable sample impossible. In either case the failure was not intentional. And if the person is taken to a machine that cannot give an accurate reading of the amount of alcohol in their blood, there is no reason for administering the test at all, so insisting on it gives the person a reasonable excuse for refusing.

A 90-day licence suspension, a seven-day vehicle impoundment, a $550 administrative penalty, an eight-hour education course and a $281 reinstatement fee — all before a court has decided anything. A conviction then brings a permanent criminal record, with potential impacts on employment and travel. Consult a criminal lawyer immediately.

A fine of not less than $2,000 on a first offence, under section 320.19(4). A second offence carries a minimum of 30 days imprisonment and a third or subsequent offence 120 days. Every conviction also carries a mandatory driving prohibition — one to three years on a first offence, two to ten on a second, three years or more after that — plus the whole of any custodial term.

Older material, including earlier versions of this page, gives the minimum fine as $1,000 and the suspension as 12 months. The minimum fine for a refusal has been $2,000 since the drinking and driving provisions were rewritten in 2018.

Ten years in prison where the Crown proceeds by indictment; on summary conviction, a fine of up to $5,000 or two years less a day, or both. The maximums rise sharply where the refusal follows an accident: 14 years where the person knew, or was reckless as to whether, they were involved in an accident resulting in bodily harm, and life where the accident resulted in death.

No. Section 730 of the Criminal Code does not allow an absolute or conditional discharge for an offence for which a minimum punishment is prescribed by law, and a refusal carries a minimum $2,000 fine. A finding of guilt for refusing a breath sample will therefore automatically result in a permanent criminal record for a first-time offender. The only route past the minimum is section 320.23, under which — with the consent of the prosecutor — a court may delay sentencing so the offender can attend a provincially approved treatment programme, and on successful completion need not impose the minimum punishment or the prohibition. Even then, it still cannot direct a discharge.

The consequences of a conviction for refusing a breath sample can include: job loss; fines, probation and possible imprisonment; loss of your driver’s licence; a significant increase in car insurance; problems with immigration, permanent residence and citizenship applications; being deemed ineligible for certain professions, jobs and opportunities; being denied entry into the United States or other countries; living with the social stigma of a criminal record; the risk of the conviction being reported publicly in the media; and a criminal record that will be stored and accessible in the national CPIC database.

For individuals without criminal histories, the effect of a refuse breath sample conviction on their livelihood, freedom and future opportunities in life can be tremendous.

Get legal advice immediately. Early strategy and disclosure requests significantly affect outcomes. Given the consequences of a drinking and driving conviction, it is important to consult with a lawyer in order to identify possible defences to the allegations before making any determination about defending your case or pleading guilty. Call Daniel Brown Law at 416-297-7200.

Possibly. Impaired driving can be laid alongside a refusal, because it can be proved from the officer’s observations without any breath reading. Over 80 cannot: a refusal means there is no reading to prove, so the two are alternatives to each other. You can read more information about impaired driving and other drinking and driving offences such as driving over 80, or about care and control where police say you were in charge of a vehicle without driving it.