Refusing a Breath Sample Is a Criminal Offence
If you refuse a breathalyzer in Ontario, you will be charged with a criminal offence that carries the same penalties as impaired driving — a mandatory minimum $1,000 fine, a one-year driving prohibition, a criminal record, an ignition interlock device, and inadmissibility to the United States. The offence is found at section 320.15 of the Criminal Code. It applies to both roadside screening demands and station breathalyzer demands.
Parliament created this offence for a specific reason: to eliminate any incentive for drivers to refuse testing. Before the refusal offence existed, a driver could simply refuse to blow and the Crown would be left without breathalyzer evidence. The refusal offence closes that gap by making the act of refusal itself a criminal charge with penalties identical to impaired driving.
The Two Types of Breath Demands
There are two distinct breath demands under the Criminal Code, each with different legal requirements.
Roadside Screening Demand — Section 320.27(1)
A police officer who has an approved screening device (ASD) in their possession can demand a breath sample from any driver who has been lawfully stopped. Since the 2018 amendments introduced by Bill C-46, this is a mandatory alcohol screening power — the officer does not need to suspect that you have been drinking. Any lawfully stopped driver can be required to blow into the ASD.
The ASD produces one of three results: pass, warn, or fail. A “fail” result gives the officer grounds to arrest you and demand a more precise breath test at the station. A “warn” result triggers administrative consequences under Ontario’s Highway Traffic Act but does not, on its own, constitute grounds for a criminal charge.
Evidentiary Breath Demand — Section 320.28(1)
Once you are arrested and taken to the police station, the officer will demand that you provide two breath samples on an approved instrument — a more precise breathalyzer than the roadside ASD. To make this demand, the officer must have reasonable grounds to believe that you have committed an impaired driving offence within the preceding three hours.
Before you provide the station breath samples, you have the right to counsel under section 10(b) of the Charter. You must be informed of this right and given a reasonable opportunity to contact a lawyer. If the police proceed with the breath demand before you have had a chance to speak with counsel, the results may be excluded from evidence.
Penalties for Refusing a Breath Sample
The penalties for a refusal conviction under section 320.15 mirror those for impaired driving and over 80:
| Offence | Minimum Penalty | Driving Prohibition |
|---|---|---|
| First offence | $1,000 fine | 1 year |
| Second offence | 30 days imprisonment | 2 years |
| Third or subsequent | 120 days imprisonment | 3 years |
Beyond the criminal penalties, a refusal conviction triggers the same collateral consequences as any impaired driving conviction: a criminal record, dramatically increased auto insurance premiums, the requirement to complete Ontario’s Back on Track remedial program, mandatory installation of an ignition interlock device, and inadmissibility to the United States.
Refusing vs. Failing vs. Passing: Outcomes Compared
Understanding what happens at each possible outcome of a breath demand helps explain why refusing is almost never the right strategic decision.
| Outcome | Criminal Charge | What Crown Must Prove | Available Defences |
|---|---|---|---|
| Refuse breath sample | s. 320.15 — Refusal | Lawful demand + refusal | Unlawful demand, reasonable excuse, Charter violations |
| Fail (BAC over 80) | s. 320.14(1)(b) — Over 80 | BAC at or above 80 mg within 2 hours | Breathalyzer challenges, toxicology, Charter violations, observation period |
| Pass (BAC under 80) | Possible s. 320.14(1)(a) — Impaired | Ability impaired to any degree | Passing BAC supports defence — weakens Crown’s case significantly |
The key takeaway: a refusal charge gives you fewer defences than an over 80 charge. When you refuse, the Crown does not need to prove your BAC was above the legal limit — only that you refused a lawful demand. All the breathalyzer defences (maintenance issues, calibration errors, toxicology evidence, timing arguments) are unavailable because there are no breath results to challenge. You trade a defensible position for a harder one.
What Happens After You Refuse: Step by Step
Here is what to expect if you refuse a breath demand in Ontario.
- Immediate charge. The officer will charge you with refusing to provide a breath sample under section 320.15 of the Criminal Code. If the officer also has evidence of impairment, you may be charged with impaired driving as well.
- 90-day administrative suspension. Your driver’s licence is immediately suspended for 90 days under Ontario’s Highway Traffic Act. This administrative suspension takes effect at the roadside — before any court appearance.
- Vehicle impoundment. Your vehicle will be impounded for seven days at your expense.
- Release on conditions. You will typically be released from the police station on an undertaking with conditions: a promise to appear in court, a condition not to drive, and sometimes a condition not to consume alcohol.
- First court appearance. Procedural. No plea entered. The matter is adjourned for the Crown to provide disclosure.
- Disclosure review. Your lawyer reviews the Crown’s disclosure package: the officer’s notes documenting the demand and the refusal, in-car or body camera video, radio logs, and any other evidence. This is where defences are identified — was the demand lawful? Were your Charter rights respected?
- Resolution or trial. Based on the disclosure review, your lawyer may negotiate with the Crown for a resolution — potentially a withdrawal, a careless driving resolution, or another outcome. If no resolution is reached, the matter proceeds to trial. Expect 8 to 14 months from charge to trial in the GTA.
Right to Counsel: Section 10(b) of the Charter
The right to counsel under section 10(b) of the Charter is one of the most important protections in a refusal case. Upon arrest, the police must immediately inform you of your right to retain and instruct counsel, and they must provide you with a reasonable opportunity to contact a lawyer before proceeding with the evidentiary breath demand at the station.
There is a critical distinction here. The right to counsel applies after arrest, when the evidentiary breath demand is made at the station. It does not provide a right to refuse the roadside ASD demand while you wait to speak with a lawyer. The roadside screening demand is designed to be immediate, and the courts have held that requiring drivers to comply before consulting counsel does not violate section 10(b).
However, if the police fail to inform you of your right to counsel upon arrest, or if they proceed with the evidentiary demand before giving you a reasonable opportunity to speak with a lawyer, any evidence obtained — including the refusal itself — may be excluded under section 24(2) of the Charter. The Supreme Court of Canada has emphasized that the right to counsel must be implemented without delay and with diligence. A perfunctory or delayed attempt to facilitate access to counsel can constitute a breach.
In practice, right to counsel violations are among the most effective grounds for challenging a refusal charge. If the police told you to blow before you had a chance to speak with your lawyer at the station, or if they failed to re-advise you of your right to counsel after a significant change in jeopardy, the evidence may be inadmissible.
What the Crown Must Prove
To convict on a refusal charge under section 320.15, the Crown must prove three elements beyond a reasonable doubt:
- A demand was made — the officer demanded a breath sample, blood sample, or physical coordination tests.
- The demand was lawful — the officer had the legal authority to make the demand. For a roadside ASD demand, this means the driver was lawfully stopped and the officer had an ASD available. For an evidentiary demand, this means the officer had reasonable grounds to believe an impaired driving offence had been committed.
- The accused refused or failed to comply — the accused either outright refused or failed to provide a sufficient sample without a reasonable excuse.
If any of these elements is missing, the charge fails. This is where most refusal defences focus.
Defences to a Refusal Charge
The Demand Was Not Lawful
The most common defence to a refusal charge is that the breath demand was not lawful. If the officer lacked the legal authority to make the demand, there was no obligation to comply, and the refusal is not criminal.
For a roadside ASD demand, the officer must have lawfully stopped the vehicle. While RIDE checkpoints and random traffic stops are generally permissible, a stop motivated by racial profiling or conducted without any legitimate purpose may be unlawful under section 9 of the Charter. Additionally, the officer must actually have an approved screening device available at the time of the demand.
For an evidentiary breath demand at the station, the officer must have had reasonable grounds to believe that the driver committed an impaired driving offence. If the grounds are insufficient — if, for example, the only indicator was a slight smell of alcohol with no other signs of impairment — the demand may be unlawful.
Reasonable Excuse
Section 320.15 provides a defence if the accused had a reasonable excuse for failing to comply. Courts have interpreted this narrowly. Medical conditions that genuinely prevent a person from providing a sufficient breath sample — such as chronic obstructive pulmonary disease, broken ribs from an accident, or a severe panic disorder — may constitute a reasonable excuse if supported by medical evidence.
However, courts have consistently held that the following are not reasonable excuses: fear of the results, desire to speak with a lawyer before deciding whether to blow (the right to counsel does not include the right to refuse the demand), general anxiety, failure to understand the consequences of refusal, and intoxication itself.
Charter Violations
Even where a refusal technically occurred, the evidence may be excluded if the accused’s Charter rights were violated. Common Charter issues in refusal cases include:
- Right to counsel (s. 10(b)) — failure to inform the accused of the right to a lawyer upon arrest, or failure to provide a reasonable opportunity to contact counsel before the evidentiary demand.
- Arbitrary detention (s. 9) — an unlawful stop or detention that led to the breath demand.
- Unreasonable search (s. 8) — in cases involving blood demands, challenges to the manner in which the sample was obtained.
Where a Charter breach is established, the court applies the test under section 24(2) to determine whether admitting the evidence would bring the administration of justice into disrepute. If the evidence is excluded, the Crown’s case may collapse.
Refusal vs. Failure to Provide
Section 320.15 covers both an outright refusal (saying “no” or “I won’t blow”) and a failure to provide a sufficient sample. Failure to provide typically arises when the accused attempts to blow into the instrument but does not produce enough breath for a valid reading — often described as “short blows” or “insufficient samples.”
The qualified technician operating the approved instrument will record whether the accused appeared to be making a genuine effort. If the technician notes that the accused was deliberately providing insufficient samples despite being instructed on proper technique, the Crown will argue that the failure amounted to a refusal. The defence may counter that the accused was genuinely trying but physically unable — particularly if there is a medical condition or injury.
The Strategic Reality
Some people believe that refusing the breathalyzer will make it harder for the Crown to prove impairment. The opposite is true. A refusal charge does not require the Crown to prove your blood alcohol concentration at all — only that you refused a lawful demand. The Crown’s case is often simpler to prove on a refusal charge than on an over 80 charge, because there are no breathalyzer results to challenge.
It is almost always better to comply with the breath demand and challenge the evidence afterward. There are effective defences to over 80 charges — breathalyzer maintenance issues, calibration errors, Charter violations during the testing process, and toxicology evidence challenging the readings. By refusing, you give up access to these defences and face a charge that is at least as serious.
That said, a refusal charge is not unwinnable. In R v. A.Y., our client was charged with dangerous driving, impaired driving, and refusing to provide a breath sample. The defence retained a forensic expert to challenge the Crown’s evidence. After a contested trial before a judge alone in Toronto, the client was acquitted of all charges. The case illustrates that even where a refusal charge is laid, the legality of the demand and the circumstances of the investigation can be successfully challenged.
Case names anonymized. Past results do not guarantee future outcomes.
If you have been charged with refusing to provide a breath sample in Ontario, contact our office to discuss your case. The legality of the breath demand, the circumstances of the refusal, and any Charter issues all need to be carefully assessed by experienced counsel.