Refusing a Breathalyzer During a Traffic Stop

Some motorists are confused about the “implied consent” laws in Ontario—and unclear whether they need to agree to a breathalyzer test if requested to do so by a law enforcement officer.

All motorists should be aware of their specific rights and responsibilities when stopped by a police officer at traffic stops.

Let’s start by familiarizing ourselves with the breathalyzer rules and whether refusing a breathalyzer test in Ontario is lawful—or could result in penalties.

A breathalyzer test is a procedure for measuring the blood alcohol concentration (BAC) of drivers, to determine if they are driving under the influence of alcohol.
The test uses an approved screening device to gather a breath sample. These authorized BAC-measuring devices have strict protocols attached to their usage if the evidence gathered is to be used to prosecute a defendant.

Breathalyzer testing (and impaired driving in general) in Ontario is regulated by two main pieces of legislation:

1. The Criminal Code of Canada, and
2. Ontario’s Highway Traffic Act (HTA)

In Ontario, an authorized law enforcement official can conduct random spot checks for impaired drivers even without suspicion of impairment (“probable cause”).

During a traffic stop in Ontario, you have the right to remain silent once you have identified yourself but doing so can raise the suspicions of officers. You may be requested to complete a field sobriety test or breath sample test—and it’s important to understand your obligations in such scenarios.

The “implied consent” law in Ontario means that if you are operating a vehicle, you have implicitly agreed to comply with breathalyzer testing if requested by an authorized member of law enforcement.

Refusing a breathalyzer test in Ontario without a reasonable excuse can result in an immediate administrative licence suspension and criminal charges.

The criminal charges can lead to penalties that may even be harsher than for a standard impaired driving conviction. This is because you are directly failing to comply with a lawful police demand.

Before you deal with any criminal charges, you’ll need to contend with some immediate roadside sanctions, which are detailed in the next section.

The associated penalties are harsh by any standards but particularly so if you hadn’t even been drinking and refused the test because you believed it was your right to do so—which does happen.

If you refuse to provide a breath sample in Ontario, you must have a reasonable excuse for doing so or face administrative and criminal penalties.

According to section 320.15(1) of the Criminal Code of Canada, failing or refusing to comply with a demand for a breathalyzer test, without reasonable ground, is an offence.

Police officers with approved screening devices can, therefore, lawfully demand a breath sample from any person operating a motor vehicle—regardless of whether there is reasonable suspicion of an offence having been committed.

Drivers must comply with the request unless they have an acceptable reason not to—which is extremely rare. A “reasonable ground” may include a disability or proven medical condition that prevents the driver from performing the test. Without this, a refusal is illegal and the driver can be arrested.

Under the terms of the Highway Traffic Act in Ontario, a breath test refusal results in an immediate roadside suspension of 90 days for a first offence. A $550 administrative penalty also applies, along with a minimum seven-day vehicle impoundment fee of $275.

These penalties apply regardless of whether you are later convicted of impaired driving—and are even more serious for repeat offenders.

You can contest the roadside suspension—and it is advisable to do so with the assistance of a seasoned DUI lawyer.

The criminal penalties for a conviction for a breath test refusal under the Criminal Code include a further license suspension, fines, mandatory alcohol education programs, and even jail time—in addition to the HTA penalties.

The fine will be not less than $2,000. The mandatory minimum driving prohibition/suspension is one year for a first-time offender but the judge can impose up to a three-year driving prohibition at their discretion.

Second-time offenders within a 10-year period will face 30 days of jail time and a three-year license suspension while subsequent offences attract 120 days of jail time.

Drivers may be able to legally drive again before their suspension ends only if they qualify for the Ignition Interlock Device program, which requires an in-car breathalyzer to be fitted. This locks the engine unless the driver registers a zero BAC from random breath tests.

The longer-term effects of a permanent criminal record can also have a knock-on effect on an offender’s future. Employment, education, travel, insurance, and immigration status can all be negatively impacted.

Each breathalyzer refusal case is assessed according to the circumstances and previous criminal record of the suspect. An experienced impaired driving lawyer can generally reduce the consequences for you with proven legal defence strategies.

It’s best to consult with a lawyer as soon as possible after the refusal incident. Your lawyer can assist in multiple ways throughout a breath test refusal or impaired driving case—notably with the following:

• Providing legal guidance to protect your rights and improve your understanding of your legal options and how to navigate the Ontario legal system.
• Investigating the case, including the details of the traffic stop and the precise actions of the police officer(s) to see if they breached your rights.
• Reviewing procedural compliance to ensure that all proper protocols were followed during the demand for a breath sample.
• Gathering supporting evidence that may be used to bolster your defence, such as witness statements or medical records.
• Building a robust defence strategy that includes cross-examinations and persuasive arguments.
• Negotiating with the prosecution or presenting you at trial, depending on which legal option is best and how strong your defence is.

With expert legal assistance, you improve the chances of a favorable outcome and preventing many of the severe consequences outlined above.

Breathalyzer refusal cases can be complex and technical. It’s best to discuss your legal options as soon as possible as you will likely need to challenge the administrative penalties in addition to the criminal ones.

For legal advice about administrative or criminal charges for refusing a breath test in Ottawa, speak to a criminal defence lawyer from Affordable Defence during a free consultation. Contact us directly online or call us at 613-223-4089.