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Breath Samples in Drinking and Driving Cases
In Toronto and throughout Ontario, if you are stopped by police and they make a lawful demand that you blow into an intoxilyzer/breathalyzer, failing to comply will result in criminal charges.
It is a legal requirement that, provided certain conditions are met, a person must submit to a breathalyzer demand by a police officer. For example, when a person is pulled over by the police for a spot check, the officer might request that they provide a breath sample at the roadside into an “Approved Screening Device.” At other times, there may be a demand that the driver accompany the police officer to the station where they will provide samples of breath into an “Approved Instrument.”
If the police ask you for a sample and you refuse, you can be convicted for a similar charge as driving while impaired or driving “Over 80.”
Defences to Refusing to Provide a Breath Sample
The defences to an allegation of refusal are usually quite technical. The courts are concerned with whether you were subjected to a legal demand and if you refused it. Examining the reasons for detention in detail and whether or not the police respected the timing requirements provided in the Criminal Code of Canada is required to determine whether a demand was lawful. The demand was not valid if there were insufficient reasons to require a breath sample or if the time requirements were not followed. If the demand was not lawful, the individual did not commit an offence by refusing to comply. If an individual has a lawful or reasonable reason to refuse, the refusal can be justified. Medical grounds or the incapacity to produce a sample are two examples of reasonable excuses.
Other defences to refusal charges include the Crown’s inability to prove that a “clear and unequivocal refusal” was occasioned in the circumstances. In some cases, an accused may be asked to provide a breath sample but does not express his refusal clearly and unambiguously. If a police officer does not receive an unambiguous refusal to his demand for breath samples, the accused may be acquitted.
If there were violations of your Charter rights, there may also be Constitutional defences applicable.
A Winning Defence
When you’ve been charged with refusing to provide a breath sample, the prospects of obtaining a successful result may seem slim. It is critical to have an experienced lawyer on your side in situations like this. In impaired driving matters, we have represented clients in Toronto, Brampton, Newmarket, and across Ontario. A thorough investigation of your case is the cornerstone of our defence strategy. We will look at the prosecutions allegations as well as the evidence gathered by the police. In our attempts to secure a successful outcome, we will hold the Crown to their burden of proof and pursue every defence available.
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