When police pull you over and suspect impaired driving, you face a critical decision: comply with the breath test demand or refuse. Many people believe refusing protects them by preventing police from obtaining evidence of intoxication. In reality, refusing a breathalyzer in Canada is almost always a disastrous decision that makes your situation significantly worse.
Understanding Canada’s breath test laws, the consequences of refusal, and why compliance is usually your best option can prevent you from turning a defensible DUI charge into an unwinnable refusal conviction.
Canada’s Breathalyzer Demand Laws
Under the Criminal Code, police have authority to demand breath samples in specific circumstances:
Approved Screening Device (Roadside): If police have reasonable suspicion you have alcohol in your body, or if you’re stopped lawfully for any reason (mandatory alcohol screening), they can demand an immediate roadside breath sample.
Approved Instrument (Station): If you fail the roadside test or police have reasonable grounds to believe you’re impaired or over 0.08, they can demand you accompany them to the station for breath testing on an approved instrument.
You must comply with these demands. Refusal is a criminal offence carrying the same penalties as impaired driving itself.
The Consequences of Refusal
Section 320.15 of the Criminal Code makes it an offence to refuse to comply with a breath demand without reasonable excuse.
Penalties for refusal:
- First offence: Mandatory minimum $2,000 fine
- Second offence: Mandatory minimum 30 days jail
- Third offence: Mandatory minimum 120 days jail
- Maximum penalty: 10 years imprisonment (if prosecuted by indictment)
These are identical to impaired driving penalties. You face the same consequences for refusing as you would for being convicted of impaired driving, but with a much weaker defence.
Additional consequences:
- Immediate 90-day licence suspension (Ontario)
- 7-day vehicle impoundment
- Criminal record
- Mandatory ignition interlock device
- Dramatically increased insurance rates
- U.S. inadmissibility
- Immigration consequences for non-citizens
Why Refusal Makes Your Situation Worse
Many people refuse breath tests believing it helps their case. This is almost always wrong. If you’re facing this decision, consulting with the best DUI lawyers in Toronto can offer will confirm that refusal rarely benefits the accused and typically makes defending charges significantly harder.
1. Refusal Convictions Are Easier to Prove
To convict you of impaired driving, the Crown must prove:
- You operated a vehicle
- Your ability to operate was impaired by alcohol/drugs, OR
- Your blood alcohol concentration exceeded 0.08
This requires establishing impairment or specific BAC levels, both challengeable.
To convict you of refusal, the Crown need only prove:
- Police made a lawful demand
- You refused to comply
- You had no reasonable excuse
This is much easier to prove. Your refusal is usually captured on police video, witnessed by officers, and clearly documented. There’s no scientific evidence to challenge, no breathalyzer calibration issues to argue, no technical defences available.
2. You Lose Valuable Defences
When you provide breath samples, numerous defences become available:
Technical challenges:
- Breathalyzer calibration and maintenance issues
- Operator error or improper testing procedures
- Instrument malfunction
- Margin of error arguments
Timing defences:
- “Last drink” defence (rising blood alcohol)
- Delays in testing exceeding “as soon as practicable”
- Elimination rate arguments
Medical defences:
- GERD or acid reflux affecting results
- Medical conditions impacting breath testing
- Mouth alcohol contamination
Charter defences:
- Rights violations during arrest
- Improper demands
- Failure to provide access to counsel
All of these defences disappear if you refuse. You’re left arguing only that the demand was unlawful or you had a reasonable excuse, much narrower grounds.
3. Crown Can Still Prove You Were Impaired
Even if you refuse breath tests, the Crown can still prosecute you for impaired driving based on:
- Officer observations (bloodshot eyes, slurred speech, alcohol odor)
- Driving pattern (weaving, erratic speed)
- Failed field sobriety tests
- Your own admissions about drinking
- Video evidence of your condition
You could face both refusal AND impaired driving charges, giving the Crown multiple routes to conviction.
4. Judges View Refusal Negatively
Refusing breath tests suggests consciousness of guilt. Judges often view refusal as evidence you knew you were impaired and were trying to hide it. This affects:
- Bail decisions
- Sentencing (if convicted)
- Credibility assessments
The “Reasonable Excuse” Defence
The only defence to refusal is demonstrating a “reasonable excuse” for non-compliance.
What courts accept as reasonable excuse:
- Medical inability to provide adequate breath samples (severe asthma, COPD)
- Genuine misunderstanding of the demand (extremely rare)
- Physical impossibility (unconsciousness)
What courts do NOT accept:
- “I wanted to speak with my lawyer first” (you can speak with counsel after providing roadside sample)
- “I was too drunk to understand” (voluntary intoxication is not an excuse)
- “I was scared/nervous”
- “I didn’t think I had to”
- “I couldn’t blow hard enough” (unless genuine medical condition)
The reasonable excuse defence succeeds in only a tiny fraction of refusal cases.
When Might Refusal Make Sense?
There are vanishingly few circumstances where refusal might be strategically defensible:
You have a genuine medical condition preventing adequate breath samples and can prove it.
The demand was clearly unlawful (no lawful stop, no reasonable grounds), though this is a risky gamble.
You’ve already been charged with refusal and providing samples now won’t help (though you should still comply to avoid additional charges).
For 99% of people pulled over, compliance is the better option.
What You Should Do Instead
If police demand a breath sample:
Comply with the demand while protecting your other rights:
- Provide the breath sample as requested
- Exercise your right to silence – Don’t answer questions about where you’ve been, how much you’ve had to drink, or when you last consumed alcohol
- Request to speak with a lawyer at the station before providing evidentiary samples
- Document everything – Remember what happened, what was said, timing of events
- Contact a lawyer immediately after release
Providing breath samples gives you evidence to work with and defences to pursue. Refusal gives you a nearly indefensible charge with identical penalties.
If You’ve Already Refused
If you’ve already refused a breath test:
Contact a lawyer immediately. While refusal charges are difficult to defend, some cases involve unlawful demands, Charter violations, or circumstances that might support reasonable excuse arguments.
Document your reasons for refusing and any medical conditions affecting your ability to comply.
Do not discuss the refusal with anyone except your lawyer, anything you say can undermine potential defences.
The Bottom Line
Refusing a breathalyzer in Canada is almost never the right strategy. You face identical penalties to impaired driving with far fewer defences, easier Crown proof, and judicial skepticism about your reasons.
The instinct to refuse is understandable, you’re stressed, worried about providing incriminating evidence, and hoping refusal protects you. But Canadian law makes refusal a separate criminal offence precisely to eliminate this option.
Comply with breath demands while exercising your other rights: remain silent about drinking, request counsel, and contact an experienced DUI lawyer immediately. Breath test results can be challenged in numerous ways, but only if samples are provided in the first place.
Don’t turn a potentially defensible impaired driving charge into an almost certain refusal conviction. When in doubt, blow.