When police stop a driver on suspicion of impaired driving, they may demand a breath sample to assess blood alcohol concentration. Many drivers believe that refusing a test limits the evidence that the police may use against them. However, the opposite is true. Refusing a breathalyzer is its own criminal offence, and the penalties are the same as those for impaired driving.
In this blog, we will explain what happens if you refuse a breathalyzer in Ontario, how refusal is treated under the Criminal Code, and why these charges are pursued so aggressively. It also outlines your rights, potential defences, and the importance of working with an experienced criminal defence lawyer in Toronto when facing refusal or impaired driving charges.
Key Takeaways at a Glance
- Refusing a breathalyzer is a criminal offence, not a workaround.
- Police can demand breath samples both at the roadside and at the station under specific legal conditions.
- Penalties for refusing to provide a breath sample match impaired driving penalties Ontario courts impose.
- A legal excuse for failing to provide a breath sample may apply in specific factual circumstances
- Early legal advice from a DUI lawyer Toronto drivers trust can significantly affect the outcome.
What Is a Breathalyzer Test in Ontario?
Police use a breathalyzer test to measure the amount of alcohol in a driver’s body. In Ontario, there are two main types of breath tests, and each serves a different legal purpose.
Road Screening Test
A roadside screening test is conducted using an Approved Screening Device (ASD). The police can make an ASD demand in two situations.
First, police can demand this test during a lawful traffic stop if they have reasonable suspicion that you have alcohol in your body. This suspicion can be based on the smell of alcohol, an admission of drinking, or other observable factors.
In addition, pursuant to 2018 changes to the Criminal Code, if the police have an ASD in their possession at the time of a vehicle stop, the ASD demand can be made without any suspicion that alcohol has been consumed. In other words, if a vehicle is legally stopped (for example, for speeding or running a stop sign), the police can make a ASD demand without any grounds for believing the driver had consumed alcohol as long as the officer has an ASD in their possession.
Approved Instrument Test
An evidentiary test at a police station is conducted using an Intoxilyzer. This test is more precise and is typically used after an ASD result or other grounds give police reasonable grounds to believe the driver’s blood alcohol concentration exceeds the legal limit.
In both situations, the breath demand is a legal requirement. Once a valid demand is made a driver is legally required to comply,
Is It Illegal to Refuse a Breathalyzer?
Yes. Refusing to provide a breath sample is a criminal offence under the Criminal Code of Canada.
Refusing to provide a breath sample is broadly defined. In other words, saying “No” is not the only way to be charged with this offence. The police may treat the following conduct as refusal:
- Verbally declining to provide a sample.
- Delaying or stalling without a valid reason
- Pretending to blow or not following instructions properly.
- Failing to provide an adequate sample after repeated attempts
From a legal standpoint, non-compliance is treated the same as an explicit refusal. This is why if you are charged under the refuse breathalyzer provisions, you will face legal consequences even if you believed you were cooperating.
Penalties for Refusing a Breathalyzer
The penalties for refusal begin immediately and can escalate if a conviction is obtained.
At the roadside, you face an immediate licence suspension and vehicle impoundment. These administrative penalties apply before any court proceedings begin and can disrupt employment and family obligations right away.
If convicted of refusal, criminal penalties include substantial fines (minimum $2000 for a first offence), mandatory participation in education or treatment programs, and lengthy driving prohibitions. Once the driving prohibition is complete, the instillation of an ignition interlock device is required to commence driving. Lastly, it is critical to note that a criminal record has a lasting consequence that can impact your employment, travel, and professional licensing.
The point being, before you consider pleading guilty to a charge of refusing or failing to provide a breath sample, obtain legal advice from a lawyer experienced in defending such charges. You have nothing to lose, but everything to gain.
Also Read: How to Beat a DUI Charge: Legal Defences That Work
Can You Legally Refuse the Test?
In almost all situations, you must comply with a lawful breath demand. Legal excuses for refusal are extremely limited.
Possible exceptions may include a genuine medical inability to provide a breath sample or a clear equipment malfunction that prevents compliance. Even in these cases, the burden often shifts to the defence to establish that the refusal was not willful, which can be challenging.
Your Rights When Police Demand a Breath Test
You do have rights during impaired-driving investigations, but those rights are subject to strict limits.
At the roadside ASD stage, the right to counsel is limited. Police are not always required to allow a call to a lawyer before administering a screening test. However, once the police make a formal evidentiary breath demand (the Approved Instrument Test), the right to speak with counsel applies before testing proceeds.
Police must clearly communicate the demand and provide reasonable instructions. You can ask for clarification, but you cannot insist on conditions that delay or obstruct the test.
Possible Defences to a Refusal Charge
Refusal cases are highly fact-specific, and potential defences depend on a careful analysis of police conduct and evidence.
Possible defences include:
- The breath demand made by the police was unclear and/or improper
- The police failed to properly communicate that legal requirements for the breath demand
- The police lacked the necessary grounds to make the breath demand
- You had a valid reason, such as an underlying medical condition or injury, that prevented you from providing a breath sample
- Arguments under the Charter of Rights and Freedoms and Freedoms, such as a violation of the rights to counsel. For example, if there was a delay at the roadside before the ASD test was administered, there may be an argument that the police were required to inform you of the right to counsel. If successful, the evidence (the refusal to provide the breath) is excluded and the charge dismissed.
Device malfunction, improper instruction, or environmental factors such as poor lighting or excessive noise can also play a role. At the same time, miscommunication between the officer and you may be relevant if it undermines the validity of the alleged refusal.
The success of any defence depends heavily on the quality of disclosure, timing, and legal strategy.
Also Read: Roadside Checkpoints: Know Your Rights And Responsibilities
Why Legal Representation Matters
Refusal charges are complex and evidence-driven. Trying to navigate them without professional guidance can expose you to unnecessary risk with long-lasting potential consequences.
A criminal defence lawyer Toronto residents trust can review all police notes, examine the legality of the stop and demand, and identify Charter issues, which someone who is not intimately familiar with the law will likely struggle with. Your counsel can obtain disclosure, challenge procedural errors, and test the reliability of the evidence.
An experienced DUI lawyer Toronto drivers rely on understands how refusal cases are prosecuted and how to build defences that protect driving privileges and long-term interests.
Fedorowicz Law has extensive experience handling impaired driving and refusal cases, with a strategic approach based on careful legal analysis and client-focused advocacy.
How Fedorowicz Law Can Help
Fedorowicz Law represents individuals charged with refusal and impaired driving offences across Toronto and the surrounding area, and our firm is experienced in challenging unlawful police demands, procedural errors, and Charter violations.
Each client receives a personalized defence strategy based on the specific facts of their case. Where appropriate, we pursue negotiations with the Crown or seek charge reductions while remaining fully prepared for trial.
The focus is always on protecting driving privileges, minimizing penalties, and avoiding a criminal record whenever possible.
Refusing a Breathalyzer in Ontario Comes at a High Cost
Refusing a breathalyzer in Ontario can lead to severe consequences, often harsher than taking the test. From immediate licence suspensions to long-term criminal penalties, refusal charges can affect nearly every area of your life. That is why understanding the law, your rights, and available defences is critical.
Strong legal representation can make a meaningful difference in how these cases are resolved. Have you been charged with refusing a breathalyzer? Contact Fedorowicz Law today for a free consultation and get the defence you need.
About the author
