Can You Be Charged if You Physically Can’t Blow?

Most people assume a refusal to provide a breath sample means someone flatly said “no” to police. But in Alberta, under the Immediate Roadside Sanctions (IRS) program, that’s not the full story.

You can still be charged with an IRS Fail/Refusal even if you tried, sometimes repeatedly, but couldn’t physically produce a sample. The penalties are severe: an immediate licence suspension, vehicle seizure, and thousands of dollars in fines and fees.

This is because under Section 88.1(1)(e) of the Traffic Safety Act, the law makes no distinction between someone who won’t blow and someone who can’t blow.

That’s where the injustice lies.

Why Providing a Breath Sample Isn’t Easy for Everyone

Blowing into an Approved Screening Device (ASD) requires a steady, continuous breath strong enough to activate the machine. For people with certain conditions, this can be next to impossible.

Some common barriers include:

  • Respiratory conditions (asthma, pneumonia, COPD)
  • Acute illnesses (influenza, chest infections)
  • Advanced age (where lung capacity naturally declines)
  • Stress and anxiety (which can cause hyperventilation or shallow breathing)

Even if the attempt is genuine, the machine may register “insufficient flow” and the officer may interpret this as refusal.

Real Cases: When Innocent Drivers Get Caught in the “Refusal Net”

Our firm has handled multiple cases where factually innocent drivers were accused of refusal despite bona fide efforts.

Case 1: Asthma, Pneumonia, and Panic at the Roadside

One of our clients, who suffered from asthma and eosinophilic pneumonia, tried multiple times to provide a breath sample. She explained her medical condition to the officer, asked to try a different device, and even requested more chances. Despite her efforts, each attempt was recorded as “insufficient flow.”

Instead of giving up, she insisted on being taken to a hospital for a blood test. The test showed no alcohol in her system. A respiratory specialist later confirmed that her medical conditions, combined with roadside panic and the absence of her inhaler, would “most definitely” prevent her from blowing properly.

The adjudicator agreed, finding that she had a reasonable excuse under section 4(i)(v) of the SafeRoads Alberta Regulation. In doing so, the adjudicator accepted our argument that she was a factually innocent driver caught in the refusal net and stressed that such cases require close scrutiny.

Case 2: A 90-Year-Old Man with Influenza A

Another client, a 90-year-old man suffering from influenza A, attempted more than 20 times to provide a sample. Despite his age and illness, he genuinely tried to comply but couldn’t sustain the airflow the ASD required.

He also went to the hospital for a blood test, which proved there was no alcohol in his body. His doctor later confirmed he had an acute respiratory infection that left him with a weak expiratory force, explaining his inability to blow.

The adjudicator rejected the officer’s claim that he was “intentionally not providing a sample” and found instead that his age and illness explained the failed attempts. His IRS was cancelled.

What the Adjudicators Found Important

In both cases, the adjudicators emphasized:

  • Medical evidence from specialists carried significant weight.
  • The drivers made bona fide attempts and had no reason to avoid testing, as proven by bloodwork.
  • Police often failed to record exactly how the drivers weren’t following instructions, leaving gaps in the evidence.
  • Crucially, adjudicators recognized that the refusal law can capture innocent drivers, and that each refusal must therefore be closely scrutinized to avoid injustice.

Why These Cases Are So Hard to Challenge

Despite these successes, refusal cases remain some of the hardest to win. Under the Provincial Administrative Penalties Act (PAPA), the burden is on the recipient to prove they either did not refuse or had a reasonable excuse.

That means:

  • You must marshal medical records, affidavits, and expert opinions.
  • You may need to undergo independent blood testing.
  • You must directly counter the police narrative that “a reasonable person should be able to blow.”

Because the law presumes non-compliance is intentional, many lawyers don’t bother challenging these cases. The odds of success are low without specialized expertise.

Cutting-Edge Advocacy: Why We Take These Cases On

At Strategic Criminal Defence, we see things differently. We know that refusal laws are overbroad and risk punishing the innocent. That’s why we’re one of the few firms willing to push these cases forward.

Our advocacy often includes:

  • Securing immediate hospital blood tests to objectively prove sobriety.
  • Working with medical specialists who can explain why compliance was impossible.
  • Demonstrating bona fide attempts to adjudicators through affidavits, detailed testimony, and cross-examination of police evidence.
  • Highlighting fairness issues and arguing that refusal cases must be carefully scrutinized because they capture innocent drivers alongside guilty ones.

This approach has already led adjudicators to recognize that innocent people can and do get caught in the refusal framework. That recognition opens the door to future challenges.

What This Means for You

If you’ve been accused of refusing a breath test despite genuinely trying to comply, you are not alone. These cases are difficult, but they are not hopeless. With the right legal team, strong medical documentation, and persistence, it is possible to prove you had a reasonable excuse and have your IRS cancelled.

At Strategic Criminal Defence, we’re leading the way in this evolving area of law. We understand the stakes, the medical realities, and the legal strategies needed to give clients the best chance of success.

Charged with an IRS Refusal? 

Contact us today for a consultation. Every refusal allegation deserves to be closely scrutinized, especially when it risks punishing the innocent.