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REFUSING A BREATH SAMPLE LAWYERS IN TORONTO
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Refusing a Breath Sample Lawyers Serving Toronto
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Charged with Refuse to Provide a Breath Sample?
A Refuse to Provide a Breath Sample (also called “Fail to Provide”) charge is laid when police allege that you did not comply with a lawful demand to provide a breath sample, either at the roadside or at the police station.
Many people believe this charge is automatic or impossible to defend. That is wrong. Refusal cases often turn on whether the police made a lawful demand and whether the alleged refusal was clear, deliberate, and properly handled by the officer.
A refusal carries the same penalties as an impaired driving or Over 80 charge, which is why these cases must be examined carefully and defended properly.
Refusing or failing to provide a breath or blood sample when required by police is treated by the courts just as seriously as an actual impaired driving charge. A conviction carries the same penalties — including a criminal record, fines, and licence suspension — even if you weren’t over the legal limit or had nothing to drink.
Many people refuse because they are confused, anxious, or unsure of their rights in the moment. However, the law requires clear and immediate compliance. The good news is that these charges can often be challenged.
Our team has successfully defended clients by exposing unlawful police demands, improper roadside procedures, and rights violations under the Charter. Don’t plead guilty — contact us right away to protect your record and your future.
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RUFUSING A BREATH SAMPLE Criminal Code provision
Failure or refusal to comply with demand
- 320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.
- Accident resulting in bodily harm
(2) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in bodily harm to another person.
- Accident resulting in death
(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in the death of another person or in bodily harm to another person whose death ensues.
- Only one conviction
(4) A person who is convicted of an offence under this section is not to be convicted of another offence under this section with respect to the same transaction.
How We Defend Refusal to Blow Charges in Toronto
We take a meticulous approach to reviewing the stop, the demand, and the interaction that followed. Police must clearly communicate a lawful breath demand, provide a reasonable opportunity to comply, and respect Charter rights throughout the process. If any step was mishandled, the charge may not stand.
Our refusal defence strategies may include:
- Challenging whether the officer made a clear and lawful breath demand
- Examining whether the accused was given a reasonable opportunity to comply
- Identifying medical conditions, anxiety, or physical limitations affecting the ability to provide a sample
- Raising language, comprehension, or communication issues
- Reviewing timing, delays, and detention issues for Charter breaches
- Disputing whether the conduct amounted to a true refusal versus inability
- Seeking withdrawal, reduction of charges, or alternative resolutions where appropriate
Refusal charges carry severe penalties, but they are often defensible. Early legal advice and a careful review of the evidence can make a decisive difference in the outcome of your case.
Types of Impaired Driving Charges Under Canadian Law
DUI / Impaired Driving
An impaired driving charge requires the Crown to prove that a driver’s ability to operate a motor vehicle was negatively affected by alcohol or drugs. The court looks at how the driver functioned, including coordination, judgment, and overall control of the vehicle. Evidence may include observations of poor driving such as swerving, crossing lanes, or involvement in a collision. Police may also rely on physical signs like slurred speech, unsteadiness, bloodshot eyes, delayed responses, or the smell of alcohol.
Over 80
The offence commonly known as “over 80” applies when a driver’s blood alcohol concentration exceeds the legal limit, regardless of whether their driving appeared impaired. The Crown only needs to prove that the driver’s alcohol level was above 80 milligrams of alcohol per 100 millilitres of blood. This is typically established through breath samples analyzed by an approved testing device. In limited circumstances, police may demand a blood sample, but only when a breath sample cannot reasonably be obtained due to medical or practical reasons.
Refusing a Breath Sample
Refusing to provide a breath sample after a lawful police demand is a criminal offence in Canada. This applies to roadside screening devices as well as approved breath testing instruments at the police station. A refusal is treated as seriously as impaired driving or driving over the legal limit and can result in a criminal record, mandatory driving prohibitions, licence suspension, and significant insurance consequences. In some cases, an individual may face both refusal and impaired driving charges arising from the same incident.
Dangerous Driving
Dangerous driving is a criminal offence that involves operating a motor vehicle in a manner that endangers the public. This can include excessive speeding, aggressive manoeuvres, or distracted driving that puts others at risk. A conviction can lead to jail time, a lengthy driving prohibition, and a permanent criminal record. We have successfully reduced dangerous driving charges to careless driving, which is a traffic offence rather than a criminal one, and have had many charges dismissed entirely.
Failing to Stop
Failing to stop after an accident — often called “hit and run” — is a criminal offence in Canada. The law requires every driver involved in a collision to stop, provide their information, and offer assistance if someone is injured. Failing to do so can result in jail time, a criminal record, and a licence suspension, even if the damage or injury seems minor. Our team has successfully defended clients by proving lack of intent, insufficient evidence, and police procedural errors.
Care & Control
Care and control is a criminal driving offence that can apply even when a person is not actively driving. An individual who is impaired or over the legal alcohol limit may be charged if they are found in or around a vehicle and there is a realistic risk it could be put into motion. Sitting in the driver’s seat creates a legal presumption of care and control under the Criminal Code. A conviction may occur unless the individual can prove they had no intention or ability to operate the vehicle.
Frequently Asked Questions About Refusals
Police do not need evidence of impairment or suspicion to make a roadside demand. This is called “Mandatory Alcohol Screening”.
Mandatory Alcohol Screening (MAS) changed the rules for roadside breath testing. Police no longer need signs of impairment, such as slurred speech or the smell of alcohol, before demanding a breath sample. If an officer has an approved screening device available during a traffic stop, they can lawfully require you to blow on the spot.
Courts have upheld MAS as lawful so long as the demand is made immediately and the device is present. As these devices are now widely available, almost any traffic stop — even for a minor infraction — can result in a breath test.
MAS is also used during RIDE checkpoints, where drivers may be stopped and required to provide a breath sample without any prior suspicion.
Refusal cases often hinge on technical details: how the demand was made, whether proper instructions were given, whether sufficient time was provided, and whether the officer actually had legal grounds to make the demand at all.
No. In law, a refusal carries the same penalties as an impaired or Over 80 convictions. It is not treated more harshly—but it is not automatic either.
An inability to provide a sample is not the same as a refusal. Medical issues, improper instructions, or equipment problems can all be relevant defences, depending on the circumstances.
For a refusal charge to stand, the demand must be clear, lawful, and properly communicated. Confusion, unclear instructions, or language barriers can be critical issues in these cases.
No. Refusal cases are highly technical and often defensible. Whether the demand was lawful is always the first question that needs to be answered.
