Refusing Breathalyzer in Ontario

In the realm of Ontario’s highways and byways, a cloud of uncertainty hangs over motorists when it comes to the act of refusing a breathalyzer test. It’s a moment that can leave you feeling both apprehensive and unsure of the consequences that may follow. But fear not. Let us embark on a journey to demystify the refusing breathalyzer charge in Ontario.

Discover the significance of understanding your rights, the potential consequences that loom, and the strategic maneuvers at your disposal to combat this charge head-on.

Understanding the Ontario Breathalyzer Rules

As residents of Ontario, we must familiarize ourselves with the specific guidelines for breathalyzer tests set forth by the province. By clearly understanding Ontario breathalyzer rules, you can navigate potential encounters with law enforcement and make informed decisions to protect your rights.

What is a Breathalyzer Test

Definition: A breathalyzer test is a procedure for measuring the blood alcohol concentration (BAC) of an individual. The test helps determine if a person is driving under the influence of alcohol, ensuring road safety.

  • Breathalyzer testing in Ontario is regulated by the Criminal Code of Canada, section 320.15 and Ontario’s Highway Traffic Act (HTA), section 48. These laws establish the legal framework for enforcing impaired driving offences.
  • In Ontario, the police have the authority to conduct random spot checks for impaired drivers, even without suspicion of impairment. While you have the right to remain silent during questioning, refusing to cooperate may raise suspicions and lead to a field sobriety test or breath sample request. 
  • The police may require the driver to provide breath samples using an approved screening device. These devices are authorized instruments for measuring blood alcohol concentration (BAC) levels.

Legal Obligations and Consent

In Ontario, there is a concept known as “implied consent,” which means that by operating a vehicle, you have implicitly agreed to comply with breathalyzer testing if requested by law enforcement.

Refusing a breathalyzer in Ontario can result in legal consequences, including licence suspension and charges.

What Happens if You Refuse a Breathalyzer in Ontario?

You commit a criminal offence if you refuse to comply with a breathalyzer demand without reasonable excuse. The penalty for refusal of breathalyzer test can include criminal charges, licence suspension, fines, and potentially even imprisonment.

Upon refusing a breathalyzer, your driver’s licence will likely be suspended immediately for a specified period (minimum 90 days), regardless of whether you are ultimately convicted of impaired driving. The duration of the licence suspension can vary depending on factors such as previous offences.

Moreover, a refusal to provide breath sample may lead to a criminal charge of “refusal to comply with a demand”. If convicted, you may face additional penalties, such as longer licence suspensions, increased fines, mandatory alcohol education programs, mandatory ignition interlock device installation, and potentially imprisonment, especially for repeat offences.

Can You Refuse a Breathalyzer Test in Ontario? 

In brief, you can’t refuse to provide breath sample in Ontario and Canada. 

According to the Criminal Code of Canada, specifically section 320.15(1), it is an offence to fail or refuse, without reasonable ground, to comply with a breathalyzer demand made under sections 320.27 or 320.28.

The introduction of mandatory alcohol screening under section 320.27(2) allows police officers in possession of an approved screening device to demand a breath sample from any person operating a motor vehicle. It means that even without reasonable suspicion, you must provide a breath sample. And you cannot refuse. Otherwise, you’ll break the law.

Some individuals mistakenly refuse a breath test without realizing the potential consequences they may face. Whether you believe you haven’t consumed alcohol or think refusing will help you evade severe penalties, it’s important to understand the reality. 

Refusing a test leads to charges for non-compliance with a police demand. However, there may be situations where a legitimate reason exists to decline, such as injury or illness preventing you from providing a breath sample.

Penalties for Refusal to Take a Breathalyzer Test Ontario under the HTA

  • Immediate 90-day roadside licence suspension 
  • Vehicle impoundment for at least 7 days
  • $550 fine
  • Licence suspension for 1 year

In case of a 2nd or subsequent offence within 10 years, you’ll be required to attend mandatory education or treatment program.

In the event of a 3rd or subsequent offence within 10 years, using an ignition interlock device becomes obligatory for a minimum duration of six months.

Penalties for Refusal of Breathalyzer Test in Ontario under the Criminal Code of Canada

In addition to the penalties laid under the Highway Traffic Act, there are also penalties under the Criminal Code of Canada upon conviction: 

  • Criminal record
  • A fine of not less than $2,000 for a first offence 
  • Possible imprisonment of up to 10 years
  • 30 days jail time for a second offence
  • 120 days jail time for subsequent offences
  • Licence suspension for 1 year (first offence), 3 years (for 2nd offence)
  • Education or treatment program
  • Installation of an ignition interlock device

Important: these penalties are subject to change and may vary depending on the specific circumstances of the case, prior convictions, and judicial discretion.

Other Consequences of Failure to Provide Breath Sample Ontario

Apart from the penalties under the Criminal Code and HTA penalties, failure to provide a breath sample in Ontario can have additional consequences. They may include:

  • Criminal record: Failing to provide a breath sample can result in a criminal record with long-term consequences on employment opportunities, travel, and other aspects of your life.
  • Insurance implications: Refusing a breathalyzer test can also affect your auto insurance. Insurance companies may view a refusal as an indication of impaired driving, resulting in higher premiums or even denial of coverage.
  • Professional repercussions: Certain professions, such as those involving driving or working with vulnerable individuals, may be affected by a criminal conviction, potentially leading to job loss or limitations in career advancement.
  • Ignition Interlock Program: In some cases, the court may order installing an ignition interlock device in your vehicle, which requires you to provide a breath sample before starting the car.

The consequences of refusing a breathalyzer test depend on the specific circumstances and any previous convictions. If you face an Ontario refusing breathalyzer charge, it’s crucial to understand the potential implications, including related offences like the over 80 charge. And consulting with a knowledgeable DUI lawyer is essential to understand your rights, navigate the legal process, and explore potential defences.

How to Fight a Refusing a Breathalyzer Charge in Ontario

Fighting a refusing a breathalyzer charge in Ontario requires a strategic approach and a proper understanding of the legal process. Here is a structured guide on how to fight such a charge:

  1. Consult with a DUI lawyer: Seek immediate legal advice from a knowledgeable DUI lawyer specializing in impaired driving cases. They will provide guidance based on their expertise and help you understand your options.
  2. Assess the case: Scrutinize the scenario, encompassing the traffic stop and the officer’s actions, to pinpoint potential flaws in the prosecution’s argument.
  3. Review procedural compliance: Examine if proper protocols were followed during the demand for a breath sample.
  4. Assess device reliability: Investigate the maintenance and calibration records of the breathalyzer device used for testing.
  5. Explore constitutional violations: Consider potential breaches of constitutional rights, such as self-incrimination or the right to counsel.
  6. Gather supporting evidence: Collect relevant evidence, such as witness statements or medical records, to challenge the prosecution’s case.
  7. Develop a strong defence: Craft a robust defence strategy, including motions, cross-examinations, or persuasive arguments.
  8. Negotiate or proceed to trial: Engage in negotiations with the prosecution or prepare for trial based on the strength of the defence strategy.

As Ontario DUI lawyers, we strongly recommend hiring legal representation to fight a refuse breathalyzer charge. Having a knowledgeable and experienced lawyer can significantly increase your chances of a favourable outcome. 

DUI laws are complex, and the consequences of a conviction can be severe. A skilled lawyer will navigate the legal process, assess the evidence, challenge the prosecution’s case, and protect your rights. 

X-COPS will work tirelessly to build a strong defence, negotiate with the prosecution, and, if necessary, represent you in court. Don’t risk your future – get a free consultation from one of our DUI lawyers in Ontario to ensure the best possible defence.

What we provide:

At X-COPS, we offer comprehensive legal support throughout the entire legal process. Our services include:

  • Legal support at all stages
  • Customized defence strategy
  • Court representation
  • Trial preparation
  • Paperwork and documentation

With our expertise and dedicated support, you can trust that we will fight vigorously to protect your driving privileges and achieve the best possible outcome in your refuse breathalyzer charge case.

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    Here we've prepared a short list of frequently asked questions in order to provide quick answers to anyone who's looking for information associated with the topic. If you need more clarification, please don't hesitate to contact us for a free consultation.

    👉Can I refuse a breath test in Ontario?

    In Ontario, you do not have the right to refuse a breath test if a police officer lawfully requests you to take it. Refusing to comply with a breath test demand without a valid excuse is an offence under the Criminal Code of Canada and can result in serious consequences.

    👉Do you have to take a breathalyzer test in Ontario?

    In Ontario, when lawfully requested by the police to take a breathalyzer test, it is mandatory to comply. Refusing to do so constitutes a violation of the law under the Criminal Code of Canada. It is crucial to understand that the refusal can have legal consequences, including charges and penalties.

    👉What are medical reasons to refuse breathalyzer?

    In Ontario, limited medical reasons may justify refusing a breathalyzer test. These reasons typically involve specific medical conditions or situations that could affect the accuracy or reliability of the test results, for example, gastrointestinal conditions, respiratory conditions, mouth alcohol interference, medical devices, and physical injuries. But you need to consult a DUI lawyer for guidance.

    👉How long is your license suspended for refusing a breathalyzer in Ontario?

    Refusing a breathalyzer test in Ontario results in an immediate 90-days licence suspension under the Highway Traffic Act. If convicted under the Criminal Code, the licence suspension can range from 1 year for a first offence, 3 years for a second offence (within 10 years), and up to lifetime driver’s licence suspension for a third offence.

    👉What happens if you choose not to provide a breath sample?

    In Ontario, refusing to provide a breath sample when requested by a police officer is a criminal offence under the Criminal Code of Canada. The consequences of refusing to provide a breath sample are the following:
    - You'll face a mandatory 90-day licence suspension, at least a 7-day vehicle impoundment, and a $550 fine.
    - Under the Criminal Code of Canada, penalties include a minimum $2,000 fine for a first offence, potential imprisonment up to 10 years, and further licence suspensions.

    Subsequent offences can lead to longer jail terms and mandatory participation in treatment programs.

    Don’t just pay the fine or go to court alone


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