Refusing to provide a breath or blood sample.

The law

The charge of "refusal" arises when a person, without reasonable excuse, fails or refuses to comply with a lawful breath or blood demand made to them by a peace officer. The penalties for this charge are as severe, and in some cases more so, as for impaired driving or driving over .08.

The charge can arise if you fail to comply with a demand for either a roadside (hand-held) screening device test, or for failing to comply with a demand for a test at the police station for a more complete analysis of your breath.

The prosecution's case

As in almost every drinking and driving case, a police officer will testify to the circumstances that brought you to their attention. They will also testify as to the circumstances that led to them demanding a sample of your breath or blood. Finally, they will testify that you refused to comply with their demand.

Challenging the prosecution's case

Just because you have been charged with refusing to provide breath samples does not mean you are guilty. The Criminal Code provides a set of detailed circumstances (rules) that must be met for a breath/blood demand to be lawful. If the demand was not made according to these rules, it is not a lawful demand.

Refusing to comply with an unlawful demand is not against the law. An example of an unlawful demand is where a peace officer makes a demand for a breath test (for analysis) based on a mere suspicion that you were impaired. A lawful demand for a breath test requires that the officer have reasonable and probable grounds (the test of which is much higher than mere suspicion).

Alternatively, you may have had a reasonable excuse for refusing to comply with the officer's demand-such as a medical problem that prevented you from providing a breath sample.

If the police believe that you cannot provide a breath sample because of an injury or some other reason, they may demand that you provide a blood sample. An entirely new set of requirements will come into play before the prosecutor in court can use the analysis of your blood.

The bottom line

While it may seem as though a charge of refusing to comply with a breath demand is straightforward, it is not. The circumstances surrounding the making of the demand must be examined in detail to determine if the demand was legal, or if there was some other reasonable excuse for failing to comply with the demand. An experienced impaired driving lawyer knows how to explore all of the legal avenues that could lead to a successful defence of this charge.