Many drivers in Ontario are surprised to discover that refusing a breath demand from law enforcement can expose them to criminal penalties equivalent to going over the legal limit and, sometimes even worse.
Refusing or Failing to Provide a Breath Sample is defined in section 320.15(1) of Canada’s Criminal Code and applies any time a driver fails or refuses to comply with a legitimate demand made by a peace officer for a sample of breath, blood, or bodily fluid from them. Due to recent amendments that took effect in December 2018, police no longer need any suspicion that you are drinking before making a roadside screening demand. Under the mandatory alcohol screening regime, an officer who lawfully stops a vehicle and has an approved screening device on hand may request that all drivers provide breath samples; refusal is then treated as a criminal offence.
Contrary to popular belief, you do not have the right to consult with a lawyer prior to providing roadside screening samples. That right only comes into effect once you have been officially arrested and transported to a police station for samples to be submitted into an evidentiary instrument. In refusal cases, the Crown bears much less of the burden than in Over 80 matters; no breath readings need be introduced by the prosecutor. Instead, the Crown must establish that you received and understood a valid demand, then failed or refused to comply without providing a reasonable excuse. While this seems straightforward enough at first glance, there can be significant legal complexities embedded within this seemingly straightforward framework – which is precisely where an experienced defence attorney shines their expertise to secure withdrawals, acquittals or successful Charter applications.
Call (416) 363-3612 or write to info@ericksonlaw.ca to book your free consultation today with an experienced DUI defence lawyer in Toronto.
Erickson Law provides criminal defence in Toronto for impaired driving (DUI) offences including:
Penalties and Long-Term Consequences of a Refusal to Give a Breath Sample Conviction
An Ontario refusal conviction carries with it serious penalties, so the Crown takes these cases just as seriously. An initial conviction carries with it a mandatory minimum fine of $2,000 – much higher than the $1,000 minimum associated with regular Over 80 charges – along with permanent criminal repercussions that will stay on record forever. A second conviction will incur at minimum 30 days and 120 for subsequent offenses, regardless of the proceeding mode – either summarily or through indictment by the Crown; when indicted, maximum imprisonment time increases up to 10 years in jail. On a first conviction, at least a one year driving ban will apply; three year bans could potentially extend further and result in lifetime bans if more convictions occur.
On a provincial level, the Ministry of Transportation immediately places you under administrative driver license suspension for 90 days upon being charged, followed by seven day vehicle impoundment and enrollment into their Back on Track remedial program as necessary. As part of your sentence, it will also be necessary for you to install and pay for an ignition interlock device for at least a year at your own expense, although its effects could prove devastating. Auto insurance premiums often skyrocket following conviction, forcing many carriers to deny coverage altogether and placing drivers into the Facility Association high-risk pool for years after. Criminal records for refusal can have life-altering ramifications that prevent entry to the United States, complicate immigration and permanent residency applications, threaten professional designations in regulated fields, disrupt child custody proceedings and eliminate employment opportunities that require driving, bonding or security clearance clearances. Therefore it’s imperative to find an experienced defence attorney that treats every detail with urgency on your file.
How Erickson Law Builds a Defence for a Refusing Breath Sample Charge
Erickson Law specializes in complex refusal cases related to drinking and driving offenses and prides itself on handling those complex files efficiently and successfully. Erickson Law excels at meeting such challenges through experienced criminal counsel’s representation. John Erickson combines over two decades of prosecution and defense experience, which allows him to anticipate every move the prosecution might make before it occurs. An effective defense in any refusal case lies in contesting the legality of any demands being placed upon you.
Under sections 320.27 and 320.28 of the Criminal Code, breath demand procedures only become valid if an officer fulfills specific statutory criteria, such as possessing an approved screening device at the time of making their demand and using appropriate language when issuing suspicion-based demands (ie reasonable suspicion that driver has alcohol). If any of the elements were lacking from an illegal demand, refusal cannot be prosecuted and you could instead invoke your reasonable excuse defense as an avenue of defence. While courts have set high thresholds for what constitutes justifiable excuses, genuine medical conditions such as severe respiratory illness, asthma attacks, panic disorders or physical injuries which prevent an adequate seal on a mouthpiece can provide reasonable justification when supported with credible evidence from licensed doctors. We examine whether the Crown can demonstrate that there was an unequivocal refusal.
At times what officers mistake for refusal is actually confusion caused by language barrier difficulties or intoxication-induced incapacity to comprehend, or simply asking for more clarification – and courts have upheld this position repeatedly. Courts also maintain that any form of uncertainty compromises prosecution efforts. Charter remedies form another cornerstone of our approach. Any violations to your section 10(b) right to counsel when detained, unlawful detention under section 9, or unreasonable search under section 8 can lead to critical evidence being excluded under Section 24(2) and result in its disappearance from trial proceedings. Trial delay arguments under R. v. Jordan remain powerful tools in congested Ontario courts, and our firm has successfully used several strategies under this statute to secure full withdrawals in drinking and driving cases involving multiple drivers. With every refusal file that comes through our doors, we bring that same focused, evidence-first methodology.
Why Choose Erickson Law for Your Refusing a Breath Sample Charge
Facing a criminal charge as serious as Refusing a Breath Sample is not the moment for a one-size-fits-all defence or a lawyer who treats your file as just another drinking and driving case on a busy docket. At Erickson Law, we approach every refusal matter as a unique problem requiring a tailored strategy, and our clients benefit from nearly twenty years of focused criminal defence work across Toronto, the Greater Toronto Area, and southern Ontario. John Erickson’s background as a former Crown prosecutor gives our clients a decisive tactical edge, because we know how the Crown evaluates a refusal file, where they look for weaknesses in your case, and how they decide whether to offer resolution or take a matter to trial. Our block-fee billing model means you will know your costs up front, with no hourly surprises, and flexible payment plans are available to make quality representation accessible.
We are reachable twenty-four hours a day for urgent matters, including fresh arrests and after-hours bail situations, because we understand that police do not wait for business hours and neither should your lawyer. We also operate with the discretion our clients deserve. John Erickson has often observed that when a lawyer’s name appears in the newspapers, the client has been done a disservice, and that quiet, disciplined approach to advocacy has protected the reputations and futures of countless individuals over the years. If you have been charged with Refusing a Breath Sample, do not plead guilty, do not speak further with investigators, and do not assume your case is hopeless. Call John Erickson directly at (416) 363-3612 for a free, confidential consultation and let us begin protecting your licence, your record, and your future today.
