There is some confusion for motorists in Ontario about whether you can refuse to provide a breath test for police officers who stop and request you to blow into the bag.
The laws changed quite recently so, while it is understandable that confusion exists, it is very important that you understand them so that you are aware of your obligations if you are stopped.
Can I refuse a breath test in Ontario? Yes, you can refuse a breath test but you will be charged with a criminal offence. That means you could face a lifelong criminal record and a long driving prohibition.
While you cannot be physically forced by police officers to perform a mandatory breathalyzer test by the side of the road or at a Toronto police station, it is now an offence to refuse to blow into the bag at the request of the police.
The police officers do not need to provide you with access to a lawyer before demanding a breath test but they do need to make you aware of the consequences of refusing one.
This new federal law came into being at the end of 2018 and is included under section 320.15 of the Criminal Code of Canada.
Can an officer demand a breath test in Ontario? A police officer who stops your vehicle for any reason (e.g., a simple traffic infringement) can demand a roadside breath test.
Under the recent changes, they do not need to suspect impaired driving.
The police have the right to stop your vehicle and request your driver’s licence, car ownership and insurance papers, and to ask if you have consumed alcohol or drugs.
They can also then request field sobriety tests and a breath test regardless of whether they smell alcohol in the car or suspect its usage: an important change that motorists need to be aware of.
Also, whereas previously you could consult a lawyer first, the current law means that you do not have that right – and you have no right to refuse a test.
If you do refuse a breathalyzer test, you will be charged with refusing to comply with a police demand.
This carries potentially serious consequences both immediately and for your future.
Consequences of refusing to give a breath sample Refusal to take a breath test will mean an instant administrative suspension of your licence (90 days), a criminal charge, and a likely court appearance.
Unless you can show the court that you had a reasonable excuse for refusing the test, you will face a lifelong criminal record.
In reality, it is extremely challenging to do this.
This means that it is likely you will face penalties that are similar to those applied if you had taken the test and failed it (as a first-time offender).
Penalties are two-fold, as laid out by the Criminal Code and the Highway Traffic Act. The criminal penalties are as follows:
A fine of $2000 for a first offence
Imprisonment for a minimum term of 30 days for a second offence
Imprisonment for a minimum term of 120 days for each subsequent offence
Jail terms for repeat offences may be up to ten years, depending on the nature of the offence (if it is treated as an indictable offence).
Penalties Under the Highway Traffic Act In addition to the penalties laid out in the Criminal Code, refusing to provide a breath test will mean the following penalties under the Highway Traffic Act for a first
Automatic licence suspension for 90 days
$550 administrative penalty
$275 Vehicle impoundment for seven days
For a second or subsequent offence within 10 years, you must also attend a mandatory education or treatment program.
For a third or subsequent offence within 10 years, you must also use an ignition interlock device for at least six months.
When you get your licence back, your insurance will be more expensive and you may face longer-term challenges with regards to future employment and travel restrictions.
Why should I refuse a breath test? Some people refuse a breath test because they are not aware of the potentially severe penalties of doing so.
You might feel that you didn’t drink anything or only drank very little alcohol so there is no need to provide a breath test.
Alternatively, it is possible that you know that you are over the limit and think that, by refusing a test, you will escape the harshest punishments.
In all cases, you would be incorrect. You would likely be charged with refusal to comply with a police demand.
That puts you in a difficult position though alternatively, it is possible that you have a valid reason to refuse a breath test, such as injury or illness that prevents you from blowing into the machine.
How can a criminal lawyer help you with failure to provide a breath sample? If you are charged with failure to comply with a police demand due to a breath test refusal, you should consult an impaired driving or driving over 80 lawyer immediately.
A skilled defence lawyer like Jeffrey Reisman, who is experienced in such cases, may be able to work with the prosecution to get the charges dismissed or ensure that the penalties are mitigated.
Mukesh Bhardwaj is used to working within the Toronto justice system to defend people against criminal charges that can have serious consequences for their futures.