Breath Test Refusal Defences in Canada

I have an interesting topic for you today. And it’s defending a refusal charge that is a refusal or failure to comply with a breath demand under the Criminal Code. You’ve been pulled over at the roadside and they feel you’re impaired and they bring you down to the police station and you ultimately refuse to provide or you’re you start blowing the machine but it’s not working and how do you defend that type of thing? Everyone thinks you’re automatically guilty if you get charged. Well, that’s not necessarily the case.

There’s, there’s various defenses to this. There’s technical defenses, and there’s other types of defenses and I’ll try and list a few of the more common defenses for you. First of all, the police if they didn’t have reasonable probable grounds to arrest you for impaired driving, and your lawyer can show that and you ultimately wound up refusing to comply with the demand at the police station.

You had an absolute right to refuse you didn’t know that at the time only your lawyer would know that in retrospect, but you could win at trial. So the lawyer would go to trial and start cross examine the officer, look they weren’t that impaired, there wasn’t any weaving there was a slight slur, there was not a lot of symptoms. And the judge might say I don’t find that sufficient grounds. You should have given them an approved screening device. You shouldn’t have just arrested them. Well, that person could then refuse at the police station. So that that would be a valid defense.

Another is right to counsel. The police breached your right to counsel, there’s a thousand different types of breaches to the right to counsel by the way it’s so complicated. There’s 1000s of cases in Canada on that point. And then the breath results, the refusal I should say would be excluded at trial. You would in that case.

You could show that, for example, you had a reasonable excuse. Sometimes people have a reasonable excuse they can’t, they’re trying, they have asthma, you know, lung capacity, they’re stressed, that sort of thing. We’ve won many cases in that particular situation. Maybe the police officer didn’t make a valid breath demand, you didn’t understand that you had to provide the sample.

And I’ll give you a simple example I’ve won this on many occasions that some police officers make the mistake where at the road, the reader breath that’s clear that you make a demand and at the police station, they say to the person do you want to provide a breath sample? No, no I don’t, that’s what I would say in that situation. No I don’t want to provide a breath sample. And they say again, you don’t want to provide a sample? No.

And I would say to myself, if I was the accused well you’re not demanding anything. It’s a wish or ask, I’ve won that type of case many times it’s the police officer thinks the operative demands at the roadside they’ve got to repeat the demand, it’s very clear that you have no choice. See, if they make a proper demand, you have no choice but they say do you wish to provide one? No, I don’t. Please don’t you know so. So that’s an easily won case too. So there’s various technical defenses sometimes there’s faulting mouth pieces to the device wasn’t working properly. I can show you the intoxilyzer wasn’t set up properly. The person’s trying to blow.

I’ve had many stressed out clients with anxiety who were not able to blow. The police make it sound like a five year old can blow into that machine. Well, that’s easy to say. But the reality is when you’re in a nervous situation, you have asthma, you’re breathing difficulty you’re stressed out. It may it you know you’re not. You may not be able to provide a sample in that situation. I’ve seen that many times. So so don’t give up in this type of situation you should have a lawyer review the charges, see if there’s one of these defenses. Or, we call these substantive defenses and technical defenses, there’s technicalities and many of these cases can be won.

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