What Happens When You Refuse A Breath Test
If you ever find yourself being pulled over in Toronto for impaired driving, the officer is likely to ask you to take a breath test. If you refuse or fail to provide a breath sample, you can be charged with refusing or failing to provide a breath sample. Keep reading to find out why.
Can a Breath Test Be Refused?
No, if a police officer makes a lawful demand for you to provide one or more samples of your breath, you do not have the right to refuse or fail to do so because your refusal or failure to provide a breath sample is a criminal offence, contrary to Section 254(5) of the Criminal Code and this offence carries the same consequences as “blowing over” or impaired operation or impaired care or control of a motor vehicle.
When Can a Police Officer Demand a Breath Test?
There are two types of breath demands which a police officer can make. The first type is often called an “Approved Screening Device Demand” or “Roadside Breath Demand”. An officer can lawfully make it, pursuant to Section 254(2) of the Criminal Code, if he/she has a reasonable suspicion that the person being investigated has alcohol or a drug in their body and has operated or had care or control of a motor vehicle, boat, etc. within the past 3 hours. This type of breath test is usually administered at the roadside.
The other type of breath demand is often called the “Approved Instrument Demand”, “Intoxilyzer Demand” or “Breathalyzer Demand”. An officer can lawfully make it, pursuant to Section 254(3) of the Criminal Code, if he/she has reasonable grounds to believe that the person is committing or within the past 3 hours has committed an offence under Section 253 (i.e. impaired operation or impaired care or control of a motor vehicle). This type of breath test is usually administered at the police station or hospital if the person has been taken to a hospital.
Penalties for Refusing the Breath Test
The penalties for refusing or failing to provide a breath sample are exactly the same as those for impaired driving, impaired care or control, “over 80” or “blowing over the legal limit”. In other words, if you are charged with refusing or failing to provide a breath sample, your driver’s license will be automatically suspended for 90 days by the Ministry of Transportation. If you later plead guilty or are found guilty after a trial, then you will have a criminal record and:
1. for a first DUI conviction, a mandatory fine of at least $1,000 plus a driving prohibition of 1 to 3 years;
2. for a second DUI conviction, a mandatory jail sentence of at least 30 days plus a driving prohibition of 2 to 5 years; and
3. for each subsequent DUI conviction, a mandatory jail sentence of at least 120 days plus between a driving prohibition of 3 years to life.
Can I Fight This Charge?
Yes, you can fight this charge. The police do make mistakes when laying this charge which can result in it being dismissed or withdrawn. This is something that should be discussed with your criminal defense lawyer.