Refusing a Breath Sample Lawyer Newmarket

Being pulled over and asked to blow into a roadside device is a stressful moment, and many drivers in Newmarket and across York Region do not realize that declining that request is itself a criminal offence. Refusing a Breath Sample is treated by Canadian law as seriously as impaired driving, and a conviction can leave a person with a permanent criminal record even if they had not been drinking at all. The instinct to stay silent or to wait for a lawyer before responding to a roadside demand often comes from a misunderstanding of how impaired driving investigations actually work.

Under section 320.15(1) of the Criminal Code, it is an offence to knowingly fail or refuse, without a reasonable excuse, to comply with a lawful breath demand (Criminal Code, RSC 1985, c C-46, s 320.15). The consequences attach the moment the refusal occurs, and they unfold quickly. Knowing the law, the penalties, and the defences available is the first step toward protecting your licence, your livelihood, and your record.

The Law behind a Breath Demand

Police authority to demand breath samples flows from two provisions of the Criminal Code. Section 320.27 allows an officer to demand a roadside sample into an approved screening device, including through mandatory alcohol screening that does not require the officer to first suspect impairment. Section 320.28 covers the evidentiary breath samples taken later at the station on an approved instrument (Criminal Code, RSC 1985, c C-46, ss 320.27–320.28). A refusal to comply with either demand engages the same offence and carries the same level of consequence.

It is worth dispelling a common misconception. Many drivers believe they have a right to speak with a lawyer before deciding whether to provide a roadside sample. That right does not apply at the roadside stage. While the Canadian Charter of Rights and Freedoms guarantees the right to counsel on detention, the Supreme Court of Canada has recognized that this right is suspended for the brief roadside screening process so the test can be administered promptly (R v Thomsen, [1988] 1 SCR 640). The right to counsel does attach before evidentiary testing at the station, but it does not justify a roadside refusal.

The Crown must still prove its case beyond a reasonable doubt. To secure a conviction, it generally has to establish that a valid demand was made by a peace officer, that the accused understood the demand was made, and that the accused failed or refused to comply without a reasonable excuse (Criminal Code, RSC 1985, c C-46, s 320.15(1)). Each of these elements creates an opportunity for a defence lawyer to test the strength of the prosecution.

Penalties and Real-World Consequences

The penalties for Refusing a Breath Sample are deliberately set to mirror, and in some respects exceed, those for impaired driving. The offence is hybrid, meaning the Crown can proceed by indictment, where the maximum is ten years imprisonment, or by summary conviction, where the maximum is two years less a day. For a first offence, the Criminal Code imposes a mandatory minimum fine of $2,000, which is higher than the minimum fine for a basic over-80 conviction (Criminal Code, RSC 1985, c C-46, s 320.19). Repeat offences bring mandatory jail: a minimum of 30 days for a second offence and 120 days for a third or subsequent offence.

Beyond the criminal sentence, a conviction triggers a mandatory driving prohibition under section 320.24, starting at a minimum of one year for a first offence (Criminal Code, RSC 1985, c C-46, s 320.24). Ontario layers its own administrative consequences on top, and several of these begin immediately at the roadside, well before any finding of guilt. Drivers in this situation commonly face:

• A 90-day Administrative Driver’s Licence Suspension imposed at the time of the refusal
• Vehicle impoundment for a minimum of seven days
• Mandatory participation in an education or treatment program and the Ignition Interlock Program upon reinstatement
• Substantial towing, storage, reinstatement, and insurance costs

The longer-term effects can be just as disruptive. A criminal record can complicate employment, professional licensing, and background checks, and it may create difficulties entering the United States or pursuing immigration and citizenship applications. For many people, these collateral consequences matter more than the sentence itself.

Defences and Reasonable Excuse

A refusal charge is far from indefensible. The statute itself contains the words “without reasonable excuse,” and establishing such an excuse is a recognized pathway to acquittal. A genuine inability to provide a sample, such as a documented respiratory condition that makes blowing into the device physically impossible, may qualify, though it must be supported by credible medical evidence rather than mere assertion. The bar is narrow, and the burden of demonstrating the excuse rests with the accused.

Procedural issues are often the more productive line of defence. The demand must be lawful, the officer must have followed the correct process, and the rights of the accused must have been respected. A defence lawyer reviewing the disclosure will examine questions such as:

• Whether the officer had the grounds required for the particular demand
• Whether the demand was communicated clearly enough for the driver to understand it
• Whether the approved screening device was operated and maintained properly
• Whether the accused’s Charter rights, including the right to counsel before evidentiary testing, were honoured

Where the police process breaks down, evidence may be excluded or the charge withdrawn. Video from in-car cameras, body-worn cameras, and station recordings is routinely available, and rather than guaranteeing a conviction, this footage frequently assists the defence by revealing exactly what was said and done.

Frequently Asked Questions

A charge for Refusing a Breath Sample carries the same gravity as an impaired driving charge, yet drivers facing it are often surprised to learn how many avenues exist to challenge it. The penalties are serious, the administrative consequences arrive fast, and the impact on a person’s record and future can be lasting. None of that means a conviction is inevitable. The outcome turns on the specific facts: the lawfulness of the demand, the conduct of the officer, the reliability of the equipment, and whether a reasonable excuse exists.

Anyone charged with this offence in Newmarket or elsewhere in York Region benefits from reviewing their situation with a criminal defence lawyer who can assess the disclosure and identify the strongest available strategy. Acting promptly, before deadlines for licence-related steps and court appearances pass, gives you the best opportunity to protect what matters most.