What Happens When You Refuse a Breathalyzer? (Best Defence)

Mar 23

Imagine this scenario: you’re driving when suddenly police pull you over. The officer suspects that you’re driving under the influence and asks you to take a breathalyzer test. But you refuse. What happens next?

In Canada, you can be charged with refusing to provide a breath sample. If you are charged with impaired driving, you can face serious consequences if convicted, especially if you don’t have a DUI lawyer defending you. What serious consequences, you ask? Let’s go over them.

The Legal Consequences of Refusing a Breathalyzer Test

Although you can’t be physically forced to submit to a breathalyzer test, you don’t have the right to refuse if the police suspect you of driving under the influence.

Here’s what can happen if you do.

What Is a Breathalyzer Test?

A breathalyzer test measures how much alcohol is in the air you breathe out. It’s an effective way to test whether motorists are under the influence of alcohol or other substances that can impair driving. The device used to estimate your blood alcohol content (BAC) from a breath sample is called a breathalyzer.

When Can an Officer Demand a Breath Sample?

A police officer can stop your vehicle on reasonable grounds and lawfully demand a roadside breath test. The officer doesn’t need to suspect impaired driving to stop you. Even a minor act of traffic law infringement could be why you are asked to pull over and provide a breath sample.

It is in your best interest to comply with the demand and provide a sample because:

  • You may pass the test and carry on with your journey.
  • You may return a low breathalyzer reading that makes you eligible for reduced charges.
  • You won’t be charged for refusing a breath test. 

In December 2018, Bill C-46 came into force which made significant changes to the impaired driving law. For instance, the previous law stated that drivers must have a BAC of more than 80 mg/100 ml at the time of driving to be charged with a DUI. The new rule states that you can be in violation of impaired driving laws even two hours after you’ve stopped driving. In other words, if you have a BAC of 80 mg/100 ml within two hours of getting out from behind the wheel, you can be charged with a DUI.

What Are the Consequences of Refusing a Breath Test?

As mentioned, you will be charged with impaired driving offences if you refuse a breath test. After your refusal, your driver’s license will be suspended for three days. If found guilty, you may face the following penalties:

  • Suspension of your driver’s licence for at least one year for a first offence
  • A criminal record for life
  • A $2,000 fine for a first offence
  • Imprisonment for at least 30 days for a second offence
  • Imprisonment for at least 120 days for each subsequent offence
  • Mandatory education, remediation, and counselling for alcohol abuse and drinking & driving
  • Ignition interlock device for a minimum of six months and a maximum of one year after your licence is returned
  • Substantially increased car insurance premiums

How Can You Defend Yourself Against Refusing a Breath Test?

A criminal defence lawyer can help you fight DUI charges that result from failing to provide a breath sample. To prove you non-guilty, your lawyer will answer these questions.

1. Was a lawful demand for a breathalyzer test made?

As mentioned, police must make a lawful demand for a breathalyzer test. If the officer didn’t have a lawful reason to request the breath sample, you are entitled to refuse a breath test. That said, that reason depends on the situation and each case is different. So it is important to look at all the facts surrounding the demand for a breath sample before coming to a conclusion.

2. What was the reason for refusal or failure?

It is necessary to assess the reason(s) for refusal or failure to provide a breath sample. This is because if the refusal was unintentional, the accused is not guilty of the offence. The reasons for unintentional refusal or failure include:

  • An obstruction in the mouthpiece receiving the sample;
  • A language barrier between the officer and the accused; or
  • A lack of comprehension due to intoxication or medical condition, like asthma or emphysema.

If the accused intentionally refused or failed to take a breath test, it can go against them at trial. In that case, the accused must establish a reasonable excuse why they intentionally failed or refused to provide a breath sample.

Reasonable excuses can be:

  • On medical grounds: This includes a danger to the health of the accused on the performance of or as a result of the test;
  • Mental grounds: The accused is so intoxicated that they were unable to understand the demand or the consequence of refusal.

3. Was the Obligation to Provide a Breath Sample Clearly Explained?

The police have a legal responsibility to ensure that the driver:

  • understands that the police officer has demanded a breathalyzer test;
  • knows what they need to do;
  • understands the implications if they refuse/fail to comply; and
  • has been given a reasonable opportunity to provide the breath sample.

If any one of these points is not fulfilled, it can lead to a non-guilty verdict.

Impaired driving is a criminal offence that risks lives. That’s why breathalyzer tests are necessary to prevent people from driving under the influence of alcohol or any other intoxicant. If you’re pulled over by a police officer, asked to provide a breath sample, and refuse or fail to do so, you can be charged with an offence. The consequences of being found guilty are serious and life-altering. If you’re charged with failing to refuse to provide a breath sample, consult a criminal lawyer. They can review your case and suggest the best course of action for your defence. With an experienced lawyer, you can rest assured knowing they will protect your rights.