Why Refusing a Breath Sample in Ontario Often Carries Harsher Penalties Than Blowing Over
One of the more pervasive myths on Ontario roads is that refusing a breath sample increases a driver’s chance of beating an impaired driving charge more effectively than providing one. The logic here seems sound; no breath reading means no evidence and thus no conviction; this logic may seem convincing at first, especially to drivers who have been drinking and find themselves cornered by flashing lights and an officer demanding evidence. Unfortunately, however, Canadian law anticipated and shut the door on this exact line of reasoning decades ago; refusing a test often leaves them worse off than had they simply submitted one and provided their sample into a machine instead.
Under Section 320.15 of Canada’s Criminal Code, refusal or noncompliance with lawful breath demands constitutes a criminal offence in its own right and should be treated as such. Refusing is no lesser charge or technicality and cannot be used to bypass or skirt around the system; Parliament deliberately designed refusal as a separate criminal offense with penalties that match (and in some instances exceed) those for an over 80 conviction; for instance a first offence carries a mandatory minimum fine of $2,000 which doubles that associated with over 80 convictions while driving prohibition, criminal recording and insurance consequences all are similar – refusing should never be seen as an alternative or quiet exit route from court action
Why the Crown Prefers Refusal Cases
From a prosecution point of view, refusal cases tend to be easier for them than over 80 cases. When drivers provide breath samples for analysis, the Crown must disclose all sorts of technical details like instrument maintenance records, qualifications of breath technicians, observation period length, timing and frequency of sample collection among many other aspects that provide avenues of defence for each driver who provided breath samples; refusal cases avoid most of this complexity by simply needing to establish that a lawful demand was issued, that their understanding was understood, and that they failed or refused compliance; defence attorneys who handle these matters regularly know this advantage over time.
Reducing their silence as being equivalent to declining politely
Presuming that asking for legal representation before blowing is permitted at the roadside Thinking a medical condition automatically excuses noncompliance
Expecting that responding to additional requests from officers is optional
These beliefs have led Ontario drivers down an unexpected path, landing them with criminal records they never anticipated.
Reasonable Excuse
While the law recognizes there may be situations when drivers cannot physically provide samples, and reasonable excuse can still be used as a defense to charges of DWI/DUI, its threshold for consideration is much higher than most people expect. Courts rarely accept vague claims of asthma, anxiety or nausea on its own as evidence that prevented compliance on that specific occasion. They require medical evidence and documentation of history. An individual who simply feels overwhelmed, disoriented or exhausted may never meet the standard required of them for providing reasonable excuse defenses. Thus it is critical that legal representation be sought as soon as a charge has been laid; another reason why engaging legal help early after being charged with driving offenses matters greatly.
No Matter, The Charter Still Applies
Failure to submit to a breath sample doesn’t make a refusal charge invincible; all of the same Charter protections that govern all impaired driving cases apply here as well. At Erickson Law, refusal files are treated with equal care when approaching police stops as any other case regarding breath samples because each bears equal burden from the Crown and follows similar rules.
Most Drivers Overlook A refusal conviction produces an identical criminal record to an over 80 offense on background checks, making employers, licensing bodies, border officials, and insurance companies inequitably evaluate it as such. Employers, licensing bodies, border officials, and insurers do not differentiate meaningfully between refusal convictions and over 80 convictions when reviewing drivers’ backgrounds; career consequences for licensed professionals; travel restrictions upon entering the US and premium increases can all follow upon either. Even drivers who initially thought they were protecting themselves at roadside often discover over time that their decision cost more than breath reading would ever have done.
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