When can I refuse to blow into a police breathalyzer?
In Canada, it is a criminal offence to refuse to blow into a breathalyzer when demanded to do so by a police officer pursuant to a lawful demand. This offence is typically referred to as “failing to provide a breath sample” and is covered under sections 320.27 and 320.28 of the Criminal Code of Canada.
Police officers can demand an Approved Screening Device breath sample from any driver they suspect of operating a vehicle with alcohol in their body. This means that if you are pulled over by a police officer and they suspect that you have been drinking, they can legally require you to provide a breath sample.
If you refuse to blow into the breathalyzer when requested by a police officer, you can be charged and possibly convicted of the criminal offence for failing to provide a breath sample. This offence is punishable by a fine, imprisonment, or both, depending on the circumstances of the case and the individual’s criminal history. Because there is a mandatory minimum sentence of $2000, if convicted the driver then has a criminal record.
It is worth noting that there are some limited circumstances in which a person may be not liable for refusing to provide a breath sample, for example, if a person has a medical condition that prevents them from providing a breath sample. However, in most cases, a person who refuses to give a breath sample when requested by a police officer will face criminal charges. In circumstances where there may be a medical excuse, the subject must make reasonable attempts to provide a sample, with their best efforts.
It is also important to understand that even if you are not charged with failing to provide a breath sample, refusing to provide a breath sample can still have serious consequences. For example, if a police officer has reasonable grounds to believe that you have refused a valid demand, they may be required to suspend your driver’s license on the spot. This suspension is for 90 days, and you will not be permitted to drive during this time.
If you are charged with a criminal offence of failing to provide a breath sample, your case will be heard in criminal court. This means that you will have a criminal record if you are convicted of this offence. A criminal record can have significant consequences for your personal and professional life, including making it more difficult to find a job or travel to certain countries.
If a police officer makes a demand for you to blow into a breathalyzer, you are obligated to do your best to provide a valid sample. The validity of the demand is something your lawyer may speak to if you have been charged or issued a driving prohibition.
We’re the BC Driving Lawyers. We’ve successfully handled many cases of this sort for decades. If you
have been charged with a criminal driving offence or received a driving prohibition, give us a call.
In Canada, the use of breathalyzers to test a person’s blood alcohol content (BAC) is governed by the Criminal Code of Canada. According to the Code, a police officer may require a driver to provide a breath sample if the officer has reasonable suspicion that the driver has alcohol in their body.
However, there are certain circumstances under which a person may refuse to provide a breath sample. These include:
- If the police officer did not have reasonable suspicion to demand a breath sample in the first place. For example, if the officer pulled over the driver without any apparent reason, the driver may have grounds to refuse the breathalyzer test.
- If the police officer did not inform the driver of their right to speak to a lawyer before providing a breath sample. According to the Code, the officer must inform the driver of this right and must provide them with an opportunity to contact a lawyer if they wish to do so.
- If the police officer did not provide the driver with a proper explanation of the consequences of refusing to give a breath sample. The officer must inform the driver that refusal to provide a breath sample is a criminal offence and that it carries the same penalties as driving while over the legal limit.
- If the breathalyzer equipment is not functioning properly, or if the officer is not properly trained in its use. In these cases, the driver may have grounds to refuse the test on the grounds that the results may not be accurate.
It is important to note that, even if a person has grounds to refuse a breathalyzer test, they may still face consequences for doing so. Under the Criminal Code, refusal to provide a breath sample is a criminal offence and carries the same penalties as driving while over the legal limit. This includes a fine, imprisonment, and a potential driving prohibition.
In summary, a person in Canada may refuse to provide a breath sample in certain circumstances, such as if the police officer did not have reasonable suspicion to demand a breath sample, or if the officer did not inform the driver of their right to speak to a lawyer. However, refusal to provide a breath sample is a criminal offence and can result in fines, imprisonment, and a potential driving prohibition.