Penalties for Refusing a Breath Test coachgrant, December 15, 2023April 10, 2024 In Canadian criminal law, if police pull you over on suspicion of impaired driving, what happens if you refuse to take the breath test? Impaired Driving According to the Department of Justice, Impaired Driving is the leading criminal cause of death and injury in Canada. In 2017, there were more than 69,000 impaired driving incidents reported by the police, including almost 3,500 drug-impaired driving incidents. The Criminal Code prohibits driving while impaired to any degree by drugs, alcohol, or a combination of both. Penalties for this offence range from a mandatory minimum fine to life imprisonment, depending on the severity of the offence. In addition to the offence of impaired driving, there are separate offences of having specified prohibited levels of alcohol, cannabis or certain other drugs in the blood within two hours of driving. Penalties range from fines to life imprisonment, depending on the severity of the offence. Alcohol The prohibited blood-alcohol concentration (BAC) is 80 milligrams or more (mg) of alcohol per 100 millilitres (ml) of blood. Cannabis (THC) There are two prohibited levels for THC, the primary psychoactive component of cannabis: it is a less serious offence to have between 2 nanograms (ng) and 5 ng of THC per ml of blood. It is a more serious offence to have 5 ng of THC or more per ml of blood. Combination of alcohol and cannabis The prohibited levels of alcohol and cannabis, when found in combination, is 50mg or more of alcohol per 100ml blood and 2.5 ng or more of THC per ml of blood. Other drugs Having any detectable amount of LSD, psilocybin, psilocin (“magic mushrooms”), ketamine, PCP, cocaine, methamphetamine or 6-mam (a metabolite of heroin) in your system within two hours of driving is also prohibited. The prohibited level for GHB is 5mg or more per litre of blood, since the body can naturally produce low levels of this drug. (gamma-Hydroxybutyric acid is a naturally occurring neurotransmitter and a depressant drug). Penalties can vary, depending on the alcohol or drug concentration, whether it is your first or a repeated offence, and whether you have caused bodily harm or death to another person. If You Are Pulled Over by Police… If you are pulled over by the police and they have reasonable grounds to suspect that you have alcohol or drugs in your body, they can demand that you provide a sample of your breath into an approved instrument. This is called a breath test or a breathalyzer test. The purpose of this test is to measure your blood alcohol concentration (BAC) and determine if it exceeds the legal limit of 80 mg of alcohol in 100 mL of blood. However, some drivers refuse to comply with this demand, either by verbally refusing, physically resisting, or failing to provide an adequate sample. This is a serious offence under the Criminal Code of Canada. Note carefully that refusing breath test carries the same penalties as impaired driving or driving with a BAC over 80. These penalties include: A mandatory minimum fine of $2,000 for a first offence, $3,000 for a second offence, and $4,000 for a third or subsequent offence A mandatory minimum driving prohibition of one year for a first offence, two years for a second offence, and three years for a third or subsequent offence A criminal record that can affect your employment, travel, and insurance Possible jail time of up to 10 years if prosecuted by indictment In addition to these criminal consequences, you may also face administrative sanctions from your provincial or territorial licensing authority, such as: An immediate roadside suspension of your driver’s licence for 90 days or longer A requirement to attend an education or treatment program A requirement to install an ignition interlock device in your vehicle for at least one year A higher insurance premium or difficulty obtaining insurance. Especially for those with a prior conviction on a drinking and driving charge, insurance may be impossible to acquire. Even following an initial conviction on a drinking and driving charge, expect your insurance rates to skyrocket. Perhaps most importantly, it is important to remember that a charge of refusing to comply with a breath test demand will often require that you go to court to provide evidence that you have a reasonable excuse to refuse. Court can be very expensive. Hiring a lawyer to defend you at a criminal trial is, for many people, beyond their reach financially. Others think that they can defend themselves in criminal court. That may be true for some but, remember too that your opponent in court is a highly skilled lawyer (a prosecutor) who does nothing else but handle criminal cases.! Why do some drivers refuse to take the breath test? Some drivers may refuse to take the breath test because they believe that they can avoid being convicted of impaired driving or over 80 by doing so. They may think that without a breath sample, the police will not have enough evidence to prove their guilt beyond a reasonable doubt. They may also think that they can challenge the validity of the demand or the reliability of the instrument in court. However, these are misconceptions that can backfire on them. Refusing to take the breath test is not a valid defence to impaired driving or over 80. In fact, it can make their situation worse by adding another charge and another set of penalties. Moreover, the police do not need a breath sample to prove impaired driving or over 80. They can rely on other evidence, such as: Their observations of your driving behaviour, appearance, speech, and demeanour The results of standardized field sobriety tests (SFSTs) or drug recognition evaluations (DREs) that assess your physical and mental impairment The testimony of witnesses who saw you consume alcohol or drugs or saw you operate the vehicle The presence of alcohol containers, drug paraphernalia, or odours in your vehicle The results of blood tests or urine tests that measure your BAC or drug concentration Furthermore, refusing to take the breath test does not guarantee that you will avoid giving a breath sample. The police can obtain a warrant from a judge or justice of the peace to take a sample of your blood if they have reasonable grounds to believe that you committed an impaired driving offence and that taking a blood sample is necessary in the circumstances. This can happen if you are injured in an accident and taken to a hospital, for example. What are some valid reasons to refuse to take the breath test? There are very few valid reasons to refuse to take the breath test. The Criminal Code states that you must comply with the demand unless you have a reasonable excuse. A reasonable excuse is something that prevents you from providing a breath sample despite your best efforts and willingness to do so. It is not something that you choose or create for yourself. Some examples of reasonable excuses are: Having a medical condition that makes it physically impossible or dangerous for you to blow into the instrument, such as asthma, emphysema, or heart disease Having a mental disability that makes it impossible for you to understand the demand or the consequences of refusing it Having a language barrier that prevents you from communicating with the police officer or understanding their instruction a denial of legal advice prior to providing a sample. These are not automatic defences, however. You still have to prove that you had a reasonable excuse at the time of the demand and that it was not fabricated or exaggerated. You also have to show that you informed the police officer of your excuse as soon as possible and cooperated with them in finding an alternative way to test your impairment. What should you do if you are asked to take the breath test? If you are asked to take the breath test, you should comply with the demand unless you have a valid, reasonable excuse. Refusing to take the breath test is a serious offence that can have severe consequences for your life and liberty. It is not a smart or effective way to avoid being convicted of impaired driving or over 80. However, complying with the demand does not mean that you have to plead guilty or give up your rights. You still have the right to remain silent, to consult a lawyer, and to challenge the evidence against you in court. You may have valid defences to the charges, such as: The police did not have reasonable grounds to demand a breath sample The police did not make the demand as soon as practicable The police did not inform you of your right to legal advice The police did not follow the proper procedures for operating the instrument or taking the sample The instrument was malfunctioning or inaccurate The sample was contaminated or tampered with If you are charged with refusing to take the breath test, impaired driving, or over 80, you should contact a criminal defence lawyer as soon as possible. Police will allow you to make that call from the station. A lawyer can advise you of your options, protect your rights, and represent you in court. A lawyer can also help you deal with the administrative consequences of your charges, such as applying for a restricted licence or an ignition interlock exemption. Conclusion Refusing to take the breath test is a serious decision that can have serious consequences. Before you make that decision, you should know the facts and the law and you should be very sure that your excuse will stand up in court. You should also know that you have the right to legal advice and representation. I hope you have enjoyed this content. If you have questions or comments I would invite you to leave any remarks you may have in the comments section below. Finally, if you would like to subscribe to our newsletter or would like to be notified of updates to the content please enter your name and best email in the form below. Grant Rayner* *Grant is a member of the Law Society of Ontario. He has permission from the Law Society of New Brunswick to practice as a visiting lawyer with the firm Langdon Law pending the transfer of his membership with the Law Society in Ontario to the Law Society of New Brunswick. If police are demanding a breath sample from you anywhere in the Upper St. John River Valley in western New Brunswick call Grant at the offices of Langdon Law: 506.497.2560. Grant has been in practice for more than 39 years and has the experience, sensitivity and maturity to guide you through this difficult period in your life. NameEmailEmail Marketing by TrafficWave.net Criminal Law impaired driving impaired driving
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Hey coachgrant! 👋 This is a super informative post about the penalties for refusing a breath test in Canada. It’s crucial information for drivers to be aware of. I’m curious, though – given the serious consequences outlined, what advice would you offer to drivers who find themselves in a situation where they’re asked to take the breath test? Are there specific steps they can take to protect their rights and navigate the legal process effectively? Thanks for shedding light on this important topic! Reply
Hello Hanna and thank you for commenting. Most appreciated. The best advice is do not refuse the test unless you are absolutely sure…absolutely sure you have a valid excuse. A valid excuse is a very good medical reason why you cannot blow into the device or if you cant understand the language. However, in Ontario anyway, the police will put you in touch with a lawyer paid by Legal Aid Ontario who speaks the language so that is not an answer. Many years ago when I did that kind of work for Legal Aid I always advised the person to take the test. I cannot recall one example, in the three years that I did that work, of anyone who had a valid excuse to refuse the test. If you refuse, the penalites are the same so, by refusing, you are incurring the same penalties that you would if you were convicted on an impaired or ‘over 80’ charge. So it makes no sense whatsoever to refuse. I hope this helps. Grant Reply
Hi there! This breakdown of penalties for refusing a breath test in Canadian criminal law is insightful and crucial for drivers to understand – even more so if they’re planning on visiting this area. The detailed explanation of the legal consequences, from mandatory fines to potential jail time, serves as a comprehensive guide. The emphasis on the impact of refusing a breath test on one’s criminal record, employment, travel, and insurance adds a layer of real-world consequences that many may not fully grasp. The mention of possible administrative sanctions from provincial or territorial licensing authorities further highlights the ripple effect of such actions. The inclusion of valid reasons to refuse the breath test, such as medical conditions or mental disabilities, adds nuance to the discussion. Explaining that these are not automatic defenses and must be proven is a practical touch, providing a realistic perspective on legal nuances. In your experience or observation, have you noticed any common misconceptions people have regarding refusing a breath test, and how has your legal expertise influenced your approach to educating the public on this matter? Reply
Hello Stephanie and thank you for commenting. In my experience, many believe that they can simply refuse to take a breath test. As you may have realized after reading the article, that is a serious mistake. The medical grounds that would support a refusal are very narrow. Accordingly, unless you have reviewed your medical condition with a doctor fully and are absolutely certain that the condition can support a refusal, you are wise to take the test. The misconceptions are common so that is precisely why I did the post on the consequences of refusing. Thank you again for your comments. Grant Rayner Reply
Hi Grant, Thanks a lot for sharing this article. I’m an engineering graduate with no background in law, but this was a rather interesting read for me as back in high school, I studied the working principle of the breath test (or breathalyser as we used to call it) in detail as part of my chemistry class. It’s interesting to learn about the penalties for refusing a breath test in Canada. I’m curious to know if there are any other countries that have more lenient laws in place. For example, do laws in some countries allow for refusing the breath test for something other than one of the concrete, reasonable excuses you mentioned? Thanks in advance, Yusuf Reply
Hello Yusuf and thank you for commenting. Here in Canada it is referred to as the ‘Breathalyzer’ as well. The penalties for refusing are the same as if you were convicted on a charge of impaired driving so, unless you have a good medical excuse for refusing, you will be convicted. I do not know about all countries but my guess is that, in countries where the legal system is based on British common law, the penalties are similar if not identical. Drunk drivers cause more death on the highways more than any other cause so it would surprise me if there is much, if any, difference in the drinking and driving laws across nations generally speaking. Grant R Reply
Thank you for shedding light on the penalties associated with refusing a breath test. Understanding the legal consequences is crucial for anyone facing such a situation. I have a question regarding the variations in penalties across different jurisdictions. Does each state have its own set of rules, or are there overarching federal guidelines? Additionally, has anyone had personal experience dealing with these situations? Sharing experiences can provide valuable insights and support for those navigating through these legal matters. Reply
Hello Shafiq and thank you for your comments and questions! You are absolutely right. This information is critical for anyone facing a situation. In Canada we have what are called RIDE programs (Reduce Impaired Driving Everywhere). Police set up a drive through lane on a street and you must stop. Police ask you if you have been drinking and if they smell alcohol they can demand a breath test. Refusing is never a good idea as I explained in the article. In Canada, criminal law is a federal matter. Accordingly, it is applied in the same way across the country. In the U.S., unless an alleged criminal offense falls under the federal government’s subject matter jurisdiction, state or local laws apply in most criminal matters, ranging from minor traffic offenses to serious felonies. The federal Criminal Code includes provisions for many offenses normally handled at the state level. Some states treat test refusal as a criminal penalty, while others treat it as a civil penalty. In the U.K., the police can stop you at any time and ask you to take a breath test if they think you’ve been drinking, you’ve committed a traffic offence or if you’ve been involved in a road traffic accident. If you refuse to take a breath test, or fail to supply a sample of breath and do not have a ‘reasonable excuse’, you can be arrested. A reasonable excuse could be a genuine physical or mental condition stopping you from giving a sample. This is almost identical to the way the law is in Canada. I have handled many cases where a person has been charged with refusing to provide a breath sample. Unfortunately for those individuals, the medical excuses for failing to provide a breath sample are limited. Personally, in 38 years of legal practice, I have never had a client who could prove that he/she had a valid medical excuse. For those individuals, the only reasonable option is an early guilty plea to the criminal charge of refusing. The penalties are exactly the same as if convicted on a charge of impaired driving. Accordingly, it is always unwise to refuse a breath demand from police. Thank you for your comments and questions Shafiq. They are most appreciated! Grant Rayner Reply