How can I defend a refusal/fail to provide breath sample charge?

By Last Updated: June 14, 2022

How can I defend a refusal:fail to provide breath sample chargeIf you were charged with a refusal/fail to provide a breath sample, you face the same potential sentence that you would otherwise face if you had provided a sample and blown Over 80, or been charged with Impaired Driving. There are many ways in which a refusal or failure to provide a breath sample can occur. Likewise, there are numerous possible defences.

The best thing you can do to fight this type of charge is to retain a criminal defence lawyer with experience in DUI defence. In the interim, there may be some steps you can take to improve your chances of a successful defence. For example, if you have a medical condition that prevented you from providing a proper sample, it will be of assistance for you to obtain medical documentation that confirms this inability as soon as possible. Below is a write up about several key points in most DUI investigations where a refusal might occur.

1. Do I have to provide a breath sample at the roadside?

If you are being asked to provide a sample at the police station, you always have the choice to decide whether or not to comply. If you do not comply, and refuse to provide a sample, you will be charged with the Criminal Code offence of refusing to provide a sample. If you try to comply, but fail to provide a sample without reasonable excuse, you will also be charged with refusing/failing to provide a sample. The penalty for refusing/failing to provide a sample is the same as if you are convicted for blowing over the legal limit.

2. Do I have the right to call a lawyer at the roadside?

There are very few situations in Canadian Criminal Law where a civilian might be required to incriminate themselves without first being advised of and/or allowed to contact counsel. Unfortunately, the impaired driving roadside breath testing protocol is one of them.  The difficulty is that not only do people not realize they are not entitled to that constitutional protection at the roadside, but they are also forced to decide whether or not to potentially incriminate themselves (by providing a breath sample) in the absence of independent legal advice.

Despite a lack of immediate legal advice, most people end up following police instruction and providing a breath sample as directed. Too many unfortunate situations nevertheless occur wherein people refuse to blow, either because they believe they are entitled to call a lawyer first, or because in the absence of legal advice they make the wrong choice.

To be clear, you do not have the right to call a lawyer before blowing at the roadside. Typically, your right to contact a lawyer crystallizes when you are physically or psychologically detained by the police. This right is suspended, however, while the police conduct their investigation to determine if they have sufficient grounds to arrest you for impaired driving. The Supreme Court of Canada has approved this suspension of counsel rights during the investigation as there is a pressing and substantial need to investigate impaired driving.

If you are being investigated for impaired driving, and are required to provide a roadside sample pursuant to this investigation, you will not be entitled to contact a lawyer unless you provide a “fail” sample and are arrested for impaired driving. If you have already found yourself in this situation and made the wrong decision by refusing, there are still numerous defences available, and it is important to consult one of our lawyers, or a lawyer in your area regarding the unique circumstances of your case.

3. Do I have to provide a breath sample at the police station?

While technically, you always have a choice as to whether to blow or not, in the sense that the police can’t force you to blow, legally speaking it’s not much of a choice. Assuming the police make a lawful demand that you provide a breath sample at the roadside, you are legally obligated to comply. You can be charged for either “failing to comply” or “refusing to comply” with a breath demand pursuant to s. 254(5) of the Criminal Code.  The offence can be committed in one of two ways, generally speaking.

The first way the offence is typically committed is through an oral refusal. The driver, for whatever reason, says to the officer expressly that he/she will not provide a breath sample. Often this type of statement is made because of an erroneous understanding of one’s legal rights. It’s not uncommon for our criminal defence lawyers to review police disclosure to see drivers say “I’m not blowing without calling a lawyer,” or “I’m not blowing because I wasn’t driving,” or something similar. Equally often people refuse to provide a roadside breath sample because they believe refusing to blow will give them a better chance of winning the case, or that blowing over at the roadside is worse than refusing.

The second way the offence is committed is by trying, but failing to provide a proper breath sample. It is not uncommon for people to make numerous attempts to blow without ever providing a proper breath sample.  Quite frequently people have legitimate difficulty in providing a sample, such as Asthma, panic attack, extreme cold, inadequate instruction, instrument failure, injury, etc. This type of explanation can constitute a reasonable excuse—and therefore a defence—to failing to provide a breath sample. Not uncommonly, however, the police describe, or sometimes even record, people clearly pretending to blow. The police might describe observing sucking instead of blowing, putting tongue or lips into the straw to block it, blowing past the straw, stopping blowing after only a second or two, or not blowing at all.

Practically speaking, not only is it illegal to willfully fail or refuse a valid breath demand, but there is actually little, if any advantage to doing so. One of the things people often misunderstand is that blowing over at the roadside is actually far less incriminating than refusing or failing to provide a breath sample.  That is, blowing over on a roadside breath test can only be used to give the police reasonable grounds to arrest/detain you for further investigation. The fact that you blew over cannot be introduced in court to prove that your blood alcohol level (BAC) was over the legal limit. Blowing over does not constitute an offence. Contrast that with a failing/refusing to provide a breath sample. If you fail/refuse to blow, that action constitutes an offence. There is no need for further investigation because the offence has now been established through the fail/refusal.

Although we hope this chapter is informative on whether you have to provide a roadside breath sample, if you are reading this you have likely already been charged with this criminal offence. Despite what might appear to be a bleak outlook at this point, there are nevertheless numerous defences to a charge of failing or refusing to provide a roadside breath sample. Every case is different, so it’s important to have a criminal defence lawyer carefully review the circumstances of your particular case to determine how to proceed.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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