Can You Refuse a Breathalyzer in Ontario?

You can physically refuse, but it is a crime. Refusing or failing to comply with a lawful breath demand in Ontario is a criminal offence under section 320.15 of the Criminal Code, with a mandatory minimum fine of $2,000 for a first offence, plus an immediate 90-day licence suspension. The "reasonable excuse" defence is narrow, and under mandatory alcohol screening police do not need to suspect you have been drinking before demanding a roadside sample.

Many drivers assume that refusing is a way to avoid evidence of a high reading. In practice, a refusal usually leads to penalties that are as heavy as, or heavier than, a first over 80 conviction. Here is how breath demands work in Ontario and what happens if you say no.

Can Police Demand a Breath Sample Without Suspicion?

Yes. Under mandatory alcohol screening in section 320.27(2) of the Criminal Code, a police officer who has an approved screening device can demand a roadside breath sample from any driver who has been lawfully stopped. The officer does not need to smell alcohol, see signs of impairment or hear an admission of drinking.

This rule came with the overhaul of the Criminal Code's impaired driving provisions in December 2018. It applies at RIDE programs, during stops for speeding or other traffic matters, and anywhere else police lawfully stop a vehicle. Our guide to what happens at a RIDE checkpoint explains that stop step by step.

Roadside screening versus the station test

There are two kinds of breath demands:

• Roadside screening demand. You blow into an approved screening device at the side of the road. A fail result typically gives the officer grounds for the next step.
• Approved instrument demand. Under section 320.28, an officer with reasonable grounds to believe you committed an impaired driving offence can require breath samples into an approved instrument, usually the Intoxilyzer 8000C at the station.

Refusing either demand is an offence. Police can also make demands for blood, a drug recognition evaluation or oral fluid in the right circumstances, often in drug-impaired driving investigations, and refusing those is treated the same way. For how long alcohol stays detectable, see our post on how long a breathalyzer can detect alcohol.

What Are the Penalties for Refusing a Breathalyzer in Ontario?

The penalties for refusal are among the heaviest for any first impaired driving offence.

Compare that with an over 80 conviction, where the minimum fine is $1,000 for a BAC of 80 to 119 mg. In other words, a refusal is punished like a reading of 160 mg or more. A second refusal carries a minimum of 30 days in jail, and a third, a minimum of 120 days.

The immediate consequences begin before any court date. Police impose a 90-day Administrative Driver's Licence Suspension, impound the vehicle for 7 days, and you face an administrative monetary penalty. Our article on the 90-day ADLS explains how that works. After a conviction, you also have to complete Back on Track and drive with an ignition interlock for at least one year after reinstatement.

What Counts as a Refusal?

A refusal is not only saying "no." Section 320.15 also covers failing to comply with a demand. Police and prosecutors may treat any of these as a refusal:

• saying you will not provide a sample,
• pretending to blow, or blowing around the mouthpiece,
• repeatedly giving samples too weak for the device to analyze,
• delaying for so long that the demand cannot be carried out, or
• agreeing only on conditions, such as first speaking to a friend.

The Crown still has to prove that the demand was lawful, that you understood it, and that you failed or refused to comply. The details of what was said, and what appears on any video, matter a great deal in these cases.

What Is a Reasonable Excuse for Refusing?

A reasonable excuse is a legal defence, but courts interpret it narrowly. Generally, it involves something that made it genuinely impossible or seriously unsafe for you to comply, such as a real medical condition that prevented you from providing a suitable sample. Feeling nervous, disagreeing with the reason for the stop or wanting to avoid a high reading is not enough.

Asking to speak to a lawyer first is a common point of confusion. Section 10(b) of the Charter gives you the right to counsel without delay once you are detained, and that right has real force before the station breath test. The roadside screening test, however, is designed to happen immediately, and courts have generally not accepted a demand to call a lawyer first as an excuse for refusing it.

If you have a medical issue, tell the officer clearly and cooperate as far as you can. Those words may later become important evidence.

What Should You Do If Police Demand a Breath Sample?

If an officer makes a lawful breath demand, the safest course is usually to comply and deal with any concerns later through your lawyer. A few practical points help:

• Listen carefully to the demand, and ask the officer to repeat it if you do not understand.
• Follow the instructions for blowing, and make a genuine effort with each attempt.
• If a medical condition makes it hard to blow, say so plainly and explain the problem.
• Once you are detained, ask to speak to a lawyer, and use that call before the station test.
• Stay calm and avoid arguing about the reasons for the stop. Those issues can be raised in court.

Complying does not mean giving up your defences. A reading can still be challenged later, but a refusal is much harder to undo.

Can You Beat a Refusal Charge?

Sometimes. A refusal charge is not automatically a conviction. A defence may focus on:

1. Whether the demand was lawful. For example, whether the stop itself was lawful, and whether the officer had the device and grounds required for the type of demand made.
2. Whether the demand was clearly made and understood. Language barriers, injury or confusion can matter.
3. Whether you actually refused. Genuine attempts to blow that failed are different from deliberate non-compliance.
4. Charter breaches. Violations of sections 8, 9 or 10(b) can lead to evidence being excluded under section 24(2).
5. Delay. Cases in the Ontario Court of Justice must generally be completed within 18 months under R. v. Jordan.

Our page on breath test refusal charges goes into these defences in more detail. Each depends on the specific facts and the disclosure.

Refusal charges are laid across the GTA, from Toronto Police Service RIDE stops downtown to York Regional Police checks in Vaughan and OPP stops on the 400-series highways.

Talk to a DUI Lawyer About a Refusal Charge

If you have been charged with refusing a breathalyzer, do not assume the case is hopeless or that pleading guilty is your only option. The way the demand was made, what you said and what the video shows can all make a difference. Our Toronto DUI defence lawyers can review your disclosure and explain where you stand.

Speak with us before your first court date so you understand the charge, the penalties and your options.