Failure or Refuse to Provide Breath Sample
Having a police officer stop your vehicle and demand that you give breath samples can be an extremely stressful and scary situation. Many clients find themselves charged with refusal/failure before they even know what is happening to them.
Under Canada’s impaired driving regime, you are required by to give samples of your breath or blood upon the demand of a police officer in two different situations. It is an offence to intentionally fail or refuse to provide these samples.
When a peace officer suspects that you have alcohol in your body
Along with the suspicion that you have operated a motor vehicle in the last three hours, they may demand that you provide forthwith a sample of your blood or breath into a roadside screening device. This acts as a means of preliminary screening to determine if further breath tests are necessary.
The roadside screening device, formally called an “Approved Screening Device” or ASD does not provide a numerical reading of your blood alcohol content. Rather it is a relatively quick method of obtaining a preliminary measure of the amount of alcohol on your body. The results of the ASD are not admissible in court, but a police officer can use the results in deciding whether to take you for further testing, or let you go on your way.
Generally, the police are not legally obligated to let you speak to a lawyer before giving an ASD sample.
When a police officer believes that your ability to operate a motor vehicle is impaired by alcohol
Along with the suspicion that you have driven a vehicle in the last three hours, they may demand that you provide multiple samples of your breath into an approved instrument (commonly known as a “breathalyzer” or “intoxylizer”). This method provides a detailed measurement of the amount of alcohol in your body can be taken. These breath samples are usually conducted at a police detachment or on a Checkstop bus. The results of these breath samples are what the prosecution will rely on when trying to have you convicted for driving with excess alcohol in your blood. You have the right to consult with a lawyer prior to giving these samples.
Bail Conditions for Failure or Refuse to Provide Breath Sample
In Alberta, your license is automatically suspended indefinitely if you are charged with refusing or failing to provide breath samples under the Alberta Administrative License Suspension (AALS). This suspension is in place until your criminal charges are disposed of. Depending on the location of your charge, this can result in a delay of up to a year!
We have successfully appealed these suspensions so that our clients can keep driving while their charges work their way through the legal system. You only have a short time window to appeal this suspension, so contact us today.
DO NOT drive while your license is suspended. You can be charged with an offence that carries an automatic 6 month driving suspension upon conviction.
Defending Failure or Refuse to Provide Breath Sample
We diligently review all the available police evidence and your version of events to determine the following key issues:
- Was the demand lawful?
- Did the police have sufficient grounds to make the demand?
- Did the police make the demands in a timely manner?
- Did the police attempt to take the samples in a timely manner?
- Were any of your constitutional rights violated?
- Were you given an adequate opportunity to discuss your options with a lawyer before providing samples (in the case of an “approved instrument” demand)
- Were the breath devices functioning properly?
- Were you given a reasonable number of chances to give samples?
- Was the consequence of failing/refusing to provide samples explained to you?
- Were you given a final opportunity to provide a sample?
- Do you have a medical or other legitimate excuse for failing to provide samples?
Where you have a viable defence, we will vigorously pursue it through cross-examination of the Crown’s witnesses; applying to have inadmissible evidence excluded from the trial and putting forth your version of events in a compelling way.
If your defence depends on putting forward evidence of a medical condition that prevented you from providing breath samples, we can help. Putting forward such evidence is a complicated matter, and will likely involve getting a report from a medical expert who has assessed you. That report must be filed properly with the Court and presented in a truthful and convincing fashion.
The penalties are every bit as severe as a conviction for driving impaired or driving with excess blood alcohol. Someone found guilty of failing or refusing to give samples faces up to 5 years in jail.
There are also heavy minimum punishments:
- First-time offender: $1000 fine and driving prohibition of 1 year.
- Second-time offender: 30 days incarceration and driving prohibition of 2 years.
- Third-time offender: 120 days incarceration and driving prohibition of 3 years.
Failure or Refuse to Provide Breath Sample FAQs
- How do I find the best lawyer for my DUI charge?
- Can I be charged with a DUI even if I wasn’t driving or the vehicle wasn’t moving (Care or Control?)
- What is the penalty if I plead guilty or I am found guilty of a DUI?
- How will my DUI charge affect my license in Alberta?
- How can I avoid a criminal record if I am guilty of a DUI?
- Can I go to the US if I am found guilty of a DUI?
- Can I get charged with a DUI if I am driving while I am high on drugs?