What Is Refusing a Breathalyzer Test in Canada?

Refusing to provide a breath sample after a lawful police stop and demand is a criminal offence in Canada. The refusal itself is what can lead to prosecution, meaning that you can be charged, even if you aren’t impaired or over the legal blood alcohol limit.

At Jaswal & Krueger, our driving offence lawyers in Surrey represent people facing refusal charges and other impaired driving offences. Understanding how a refusal charge works, what the Crown must prove, and where a defence may arise starts with the breath demand itself.

Section 320.15 of the Criminal Code makes it an offence to fail or refuse to comply with a lawful demand for a breath sample without a reasonable excuse.

This is a separate offence from impaired driving. The Crown doesn’t have to prove that the driver was impaired or that their blood alcohol concentration was above the legal limit. A person can be convicted based on the refusal alone.

A refusal also doesn’t have to be limited to saying the words “no”. Deliberately giving an insufficient sample, repeatedly failing to follow instructions, or otherwise avoiding the test can be treated as a refusal.

At the same time, not every unsuccessful breath test amounts to a criminal offence. The Crown still has to prove that a lawful demand was made and that the driver failed or refused to comply without a reasonable excuse.

Breath testing can occur at more than one stage of an impaired driving investigation, and each stage has its own legal requirements.

Police may first ask a driver to provide a roadside breath sample using an approved screening device. Under Canada’s mandatory alcohol screening laws, an officer with an approved device can make this demand during a lawful traffic stop without first having grounds to suspect alcohol consumption.

A failed roadside result, or other evidence that gives police the necessary grounds, can lead to a second demand for evidentiary breath samples using an approved instrument. Refusing a lawful demand at either stage can result in a criminal charge.

After an arrest, the accused may be released with conditions and given a date for their first court appearance. The Crown will later provide disclosure, which can include police notes, video, breath-testing records, and other evidence.

A defence lawyer will review that material to determine whether the demand was lawful, whether the alleged refusal was clear, and whether the evidence or police procedure has problems.

A refusal conviction can have severe consequences.

For a first offence, the Criminal Code provides for a mandatory minimum fine of $2,000. A driving prohibition also applies, along with any additional provincial licensing consequences.

The penalties become more serious for repeat convictions. A second offence carries a mandatory minimum jail sentence of 30 days, while a third or subsequent offence carries a minimum of 120 days.

A conviction may also affect insurance costs and eligibility, employment that involves driving, and other situations where a criminal record or driving history matters.

The available defence depends on what happened during the stop and testing process. A lawyer may examine whether the breath demand was lawful, how it was communicated, and whether the driver had a genuine medical reason for being unable to provide a sample.

The defence may also review how the device was used, whether police followed proper procedure, and whether they breached any Charter rights. Police notes, video, testing records, and other disclosure can all affect whether the Crown can prove the charge.

Refusing a breath sample can leave a driver in a worse position than taking the test. A driver loses the chance to get a result below the legal limit, while still facing serious penalties for refusing.

It also changes the case. Instead of focusing on the driver’s blood alcohol level, the key questions become whether the demand was lawful and whether the driver failed to comply.

If you think refusing will leave police with less evidence, know that isn’t how these cases work. The refusal can become the central issue in the prosecution.

A refusal charge can be challenged if the breath demand itself wasn’t lawful. The court may consider why the driver was stopped, whether the officer had authority to make the demand, and when and how the officer explained it.

The driver’s response also matters. A misunderstanding, medical issue, or genuine attempt to provide a sample can affect whether the conduct amounts to a refusal.

These cases depend heavily on the facts. Jaswal & Krueger represents clients in driving investigations involving suspected alcohol and drug impairment, where different testing procedures may apply, and issues can overlap with drug charges.

After the stop, write down what happened while you still remember the details clearly. Include what the officer said, the instructions you were given and anything that may have affected your ability to provide a sample.

From there, speak with a criminal defence lawyer as soon as you can. Once the disclosure is available, we can go through the evidence and determine whether medical concerns or Charter issues could play a role in your defence.

A refusal charge can carry serious consequences, including a criminal record and restrictions on your ability to drive. The charge still has to be proven, and the details surrounding the stop and the breath demand matter.

At Jaswal & Krueger, we represent clients facing refusal charges in Surrey and throughout the Lower Mainland. We review the evidence carefully and build the defence around the circumstances that actually occurred.

Read our client testimonials to learn more about working with our firm. If you have been charged with refusing a breath sample, contact Jaswal & Krueger to discuss your case with a criminal defence lawyer.