Why you Shouldn’t Refuse to Provide a Breath Sample

It happens to almost everyone. You’re driving along and ahead you see flashing red and blue lights with police officers directing you to stop and roll down your window. You start to think, “perhaps I shouldn’t have had that cocktail after dinner”. Based on observations of the police officer, they may form the suspicion that you’ve consumed alcohol, and demand that “you provide a sample of your breath into an Approved Screen Device”.  For a moment, you think, “what If I just refuse?” Here are three reasons why you should never refuse to provide a breath sample.

The Penalties are the Same!

The Penalty for being convicted of Refusal to Provide a Breath Sample is the same as the penalty for Impaired Driving and Driving with Excess Blood Alcohol (i.e. Over 80mg).

In other words, you’re technically not gaining anything by refusing to provide a breath sample. You will still be handcuffed and arrested. As per the Highway Traffic Act, your vehicle will be impounded for 7 days and your driver’s license will be automatically suspended for 90 days. I addition, “Refuse to Provide a Sample” is a criminal charge, and you will have to attend criminal court.

Mistakes Happen!

There are two pieces of equipment that are used by Police forces all over Canada for the majority of drinking and driving offences. When an officer has a suspicion that you’ve consumed alcohol, they “demand” that you provide a sample of your breath into an “Approved Screening Device”. Many police officers carry this portable device with them.  Blowing a “fail” on this device provides the police officer with “grounds” to arrest you. Once placed under arrest, you will be taken to a local police station to provide two samples of your breath into a “Breathalyzer”. If both of these samples result in readings over 80 milligrams of alcohol per 100 milliliters of blood, you will be charged with “Driving with Excess Blood Alcohol”.

By agreeing to take the tests, you actually increase the number of potential defences. These machines can malfunction, or can be operated improperly. Further, there are several steps that a police officer must follow leading up the provision of your breath samples. Often, this is where experienced lawyers are able to develop a defence.  After “Refusing to Provide a Sample”, there is not much more that a police officer is required to do, other than charge you.

Generally speaking, there are fewer defences available to the charge of “Refuse to Provide a Sample” than there are to “Driving with Excess Blood Alcohol/Over 80.” By “Refusing to Provide a Sample”, you may prevent yourself from realizing certain defences that may have become available had you provided a sample.

You Could Blow Under the Limit!

Ultimately, you don’t know what your breathlyzer readings are going to be. Simply put, if the penalty for being convicted of Refusal to Provide a Sample is the same as the penalty for Driving with a Blood Alcohol Level that is Over .08, then you might as well provide a sample. The “Approved Screening Device” is calibrated to fail at 100 milligrams of alcohol per 100 millilitres of blood. As such, if you blow between 50 milligrams and 100 milligrams at the side of the road, you will face non-criminal sanctions under the Highway Traffic Act.

After you fail the “Approved Screening Device” at the roadside, you are taken back to the station to provide samples of your breath into the “Breathalyzer”. One to two hours could elapse before you provide samples of your breath into the ‘Breathalyzer”. During this time, your “Blood Alcohol Concentration” could increase or decrease. There is the possibility that it could decrease below 80 milligrams, and as result, you would not be charged.  

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