Your Rights When Giving a Roadside Breath Sample at a DUI Stop in Ontario

When you are stopped by police in Ontario on suspicion of driving under the influence of alcohol, it’s usually a good idea to provide a breath sample to the police if they demand you provide a breath sample. Not only are you required by law to submit to a roadside breath test, but the penalties you face for not complying are the same as—and in some cases worse than—they would be for a DUI conviction. If your rights were violated during the breath testing process, an Ontario defence lawyer can build a case to exclude the breath sample and win your case. Learn more about refusing a breath test here.

Definition of Refusing a Roadside Breath Demand

Section 320.15.1 of the Criminal Code of Canada states:

Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

Police officers equipped with an Approved Screening Device can demand breath samples from motorists as they wish, purely randomly, and no grounds are required. The relevant Criminal Code provision reads as follows:

Section 320.27(2) 

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device.

Penalties for Refusing a Roadside Breath Demand

The penalties for refusing to provide a breath sample at the roadside, police station, or other location, are the same as for impaired driving and for exceeding 80 mg of alcohol in 100 mL. In fact, depending on the factual situation, refusing a roadside or Intoxilyzer breath demand can result in a higher fine than being found guilty of impaired driving. On conviction, the charge of refusing a roadside alcotest breath demand carries the following penalties:

• A lifetime criminal record
• A mandatory minimum driving prohibition of 1 year, up to a maximum of 3 years
• A mandatory minimum $2,000 fine
• A victim fine surcharge of 30% of the fine amount
• A requirement to have an Ignition Interlock device installed in your vehicle
• Mandatory drinking and driving counselling
• Mandatory requirement to take the Back on Track Program
• Increased motor vehicle insurance rates

The above penalties are the same penalties you would face for failing or refusing to provide a breath sample into an Intoxilzyer device at the police station. Certain penalties are immediate if you refuse to provide a breath sample and will happen even if you are ultimately found not guilty of failing or refusing to provide a breath sample. For example, you will immediately lose your driving privileges for 90 days, and your vehicle will be impounded for at least one week. If you have previously been convicted for a drinking and driving offence, you could be facing a mandatory minimum 30-day jail term or higher. If you have two prior DUI convictions, you will face a mandatory minimum jail term of 120 days or more. If you were involved in an accident and then refused to provide a breath sample, you could also face a jail term.

Building a Defence If You Refused to Provide a Breath Sample

If you refused to provide a roadside breath sample, but your rights were violated, there is a chance that a skilled DUI lawyer could build a case to defend you. Your lawyer will consider the following questions:

If the police made a roadside demand under the authority of s. 320.27(2) (where the police are not required to have reasonable grounds to suspect that you had alcohol in your body):

• Did the police have in their possession an approved screening device?
• Was the police officer acting in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law?

If the police made a roadside demand under s. 320.27(1) (where reasonable grounds to suspect are required):

• Did the police have the right or legal grounds to demand a roadside breath test?
• Was the police officer’s suspicion that there was alcohol in the person’s body reasonable?
• Was the police officer’s suspicion that the accused has, within the proceeding three hours, operated a motor vehicle (i.e., “conveyance”) reasonable?

For breath demands made under either s. 320.27(1) or 320.27(2):

• Was the correct roadside demand made?
• Did the police make the demand immediately for a breath sample to be provided immediately (i.e., forthwith)?
• Was the approved screening device accessible immediately (i.e., forthwith)?
• If the demand did not fall within these requirements, was the right to counsel given to the accused?
• Was there a 15-minute mouth alcohol issue?
• Was the proper screening device used? Was there a violation of s. 8 of the Charter (i.e., a search and seizure issue) or s. 9 of the Charter (an arbitrary detention issue)
• Was the screening device properly calibrated and operated?
• Did you have a lawful reason to refuse to provide a breath sample? For example, anxiety, a panic attack, or a lung condition such as asthma could have made it impossible to provide a breath sample
• Did you have an injury that would make it dangerous to provide a breath sample?
• Did you ask for another chance (i.e., a “last chance”) to provide a breath sample after initially refusing or failing to comply?
• Did you understand the implications of refusing to provide a breath sample?

While your lawyer might be able to get the charges of refusing a breath test reversed, it is still a better idea to submit to the test and work with an experienced criminal lawyer to deal with the result.

Contact a DUI Criminal Defence Lawyer for Advice

If you have been pulled over by the police, been in a motor vehicle accident, or entered a RIDE program and refused or failed to comply with a roadside breath demand, or blew over the legal limit at the police station, you need an experienced DUI criminal defence lawyer to represent you. Your criminal defence lawyer will review the facts of your case, coupled with your version of events and advise you about the best way to proceed. The experienced and knowledgeable DUI defence lawyers at Kruse Law will work diligently to ensure your case has the best possible defence. Schedule a free meeting and quote, or call us toll-free at 1-800-699-0806 to speak with one of our professionals today.