Refusing a breathalyzer test in Canada can have serious legal consequences, particularly if you are stopped under suspicion of impaired driving. Many people believe that refusing the test will help them avoid a driving under the influence (DUI) charge, but this is a misconception. In reality, refusing a breathalyzer test can lead to severe penalties that are often just as harsh, if not harsher, than those for failing the test. In this comprehensive guide, we will explore the legal consequences of refusing a breathalyzer test in Canada, what to expect if you’re charged, and how to defend yourself.
What is a Breathalyzer Test?
A breathalyzer test is a roadside test administered by law enforcement to measure the blood alcohol concentration (BAC) of a driver. If a police officer suspects that you are driving under the influence of alcohol, they can legally request that you take a breathalyzer test. This test is a crucial piece of evidence in impaired driving cases, and refusing to take the test is considered a serious offence under Canadian law.
In Canada, breathalyzer tests are governed by the Criminal Code of Canada, specifically under Section 320.15, which outlines the laws around refusing to comply with a demand for a breathalyzer or other forms of testing (blood or urine tests). If you refuse to comply with this demand without a reasonable excuse, you can face criminal charges.
What Happens When You Refuse a Breathalyzer Test?
If you are pulled over by the police under suspicion of impaired driving and you refuse to take the breathalyzer test, the officer will likely arrest you on the spot. Refusing a breathalyzer is treated as a criminal offence, and the consequences of refusing the test are comparable to, or sometimes more severe than, those for impaired driving itself.
The police officer must inform you of your legal obligation to comply with the breathalyzer test and the consequences of refusal. If you still refuse, they may charge you with refusing to comply with a demand, which is a separate offence under the Criminal Code.
Legal Consequences of Refusing a Breathalyzer Test
Refusing a breathalyzer test can lead to significant penalties. Here are the legal consequences you may face:
- Criminal Charge: Refusing to take a breathalyzer test is a criminal offence in Canada, and if convicted, it will result in a permanent criminal record. This record can affect your ability to find employment, travel abroad, and even secure housing. A criminal record for refusing a breathalyzer is treated similarly to an impaired driving conviction.
- Fines and Penalties: Upon conviction, you may be subject to a range of fines and penalties. The minimum fine for a first offence of refusing a breathalyzer is $2,000. However, this amount can increase depending on the circumstances, such as if the refusal led to an accident or other aggravating factors.
- License Suspension: A conviction for refusing a breathalyzer test results in an automatic suspension of your driver’s license. For a first offence, your license may be suspended for at least one year. If you have prior convictions, this suspension period could be significantly longer, with a second offence leading to a three-year suspension and subsequent offences potentially leading to lifetime bans.
- Ignition Interlock Program: After serving a portion of your suspension, you may be required to install an ignition interlock device in your vehicle. This device requires you to provide a breath sample before the vehicle will start. The ignition interlock program can last for several months to years, depending on the number of previous convictions.
- Jail Time: In some cases, refusing a breathalyzer test can lead to imprisonment. For a first offence, jail time is less common, but if the refusal is tied to a more serious incident, such as an accident or injury, or if it is not your first offence, the court may impose a jail sentence of up to 30 days. For second and subsequent offences, the penalty can include up to 120 days in jail.
- Increased Insurance Rates: A conviction for refusing a breathalyzer test will cause a significant increase in your car insurance premiums. Most insurance companies view this offence as a high-risk behaviour, and you may even have difficulty finding coverage in the future.
- Vehicle Impoundment: Upon being charged, your vehicle may be impounded for a minimum of seven days. If convicted, the impoundment period may be extended, especially for repeat offenders.
Defences Against Breathalyzer Refusal Charges
Facing charges for refusing a breathalyzer test does not automatically result in a conviction. There are several defence strategies that your lawyer may use to fight the charges:
- Lack of Reasonable Grounds: The police must have reasonable grounds to suspect that you were impaired before demanding a breathalyzer test. If your lawyer can show that the officer did not have reasonable suspicion, the demand for the breathalyzer may be deemed unlawful, and the charges could be dismissed.
- Medical Condition: If you have a legitimate medical condition that prevents you from taking the breathalyzer test, this may be used as a defence. For example, certain respiratory conditions could make it physically impossible for you to provide a breath sample. However, you must provide evidence of the medical condition, and the condition must be documented.
- Failure to Inform of Consequences: The police are required to inform you of your obligation to take the breathalyzer test and the legal consequences of refusing. If they fail to do so, this may serve as a defence. In some cases, the court may rule that you were not adequately informed.
- Charter Rights Violations: If your rights under the Canadian Charter of Rights and Freedoms were violated during the arrest or breathalyzer request, your lawyer may challenge the validity of the charges. For example, if the police conducted an unlawful search or did not give you the opportunity to contact a lawyer after arrest, this could be a Charter violation.
- Impairment Due to External Factors: If external factors, such as extreme weather conditions or mechanical issues with the breathalyzer machine, affected your ability to take the test, your lawyer may be able to argue that the refusal was not intentional.
What to Do if You Are Charged with Refusing a Breathalyzer Test
If you are charged with refusing a breathalyzer test, it’s important to take immediate action to protect your rights and build a strong defence. Here are the steps you should take:
- Contact a Criminal Defence Lawyer Immediately: The most important step is to consult with a skilled criminal defence lawyer who has experience handling impaired driving and breathalyzer refusal cases. A lawyer can assess the circumstances of your arrest, identify potential defences, and represent you in court.
- Gather Evidence: Collect any evidence related to the arrest, including witness statements, medical records (if applicable), and any notes about the events leading up to the breathalyzer request. This information can help your lawyer build a strong defence.
- Do Not Plead Guilty Without Legal Advice: Refusing a breathalyzer test carries serious consequences, and pleading guilty without understanding your legal options can result in significant penalties. Always consult with a lawyer before entering a plea.
- Prepare for Court: Your lawyer will guide you through the legal process and help you prepare for court appearances. Be sure to follow their advice and provide any additional information they request.
How De Boyrie Law Can Help
At De Boyrie Law, we understand the serious consequences that come with refusing a breathalyzer test. Our experienced criminal defence team is committed to protecting your rights and providing the highest level of legal representation. Whether it’s your first offence or you have a prior criminal record, we will work tirelessly to build a strong defence and achieve the best possible outcome for your case.
Schedule a Free Consultation with De Boyrie Law
If you or a loved one is facing charges for refusing a breathalyzer test, don’t wait to seek legal advice. Contact De Boyrie Law today to schedule a free, confidential consultation. We’ll review your case, discuss your legal options, and work tirelessly to achieve the best possible outcome for you. Don’t leave your future to chance—reach out to us today to protect your rights and start building your defence.
Alex De Boyrie is an experienced Criminal Defence Lawyer covering Toronto, and the Greater Toronto Area.
In short, Alex’s experience ranges from working on bail hearings, sexual offences, weapons and firearms, assault charges, drug offences, youth crimes, Impaired Driving, and other criminal offences.