When refusing a breath sample becomes a charge
A refusal allegation is often more complicated than people expect. In Ontario, the issue is not only whether a person ultimately gave a sample. The case can turn on what demand was made, whether it was lawful and clear, what was said in response, and whether there was a genuine inability rather than a refusal.
These cases are treated seriously and can carry consequences similar to other impaired-driving-type allegations. For the surrounding issues, you may also want to read our pages on over 80 and breathalyzer rights.
The demand, the response, and the timing
The timing of the demand matters. So does the wording. The Crown may rely on body-worn video, cruiser video, station video, officer notes, and the testimony of the qualified technician or investigating officer.
Some cases involve an outright refusal. Others involve delay, confusion, panic, medical issues, language barriers, or a disputed claim that the person was trying but could not provide a proper sample.
Inability versus refusal
A real physical inability does not always amount to a refusal, but it is not enough simply to say later that giving a sample was difficult. The surrounding facts usually matter: effort, timing, instructions, and whether the police treated the situation fairly.
That is one reason the video evidence can matter so much.
Practical consequences
A refusal conviction can affect driving, insurance, employment, and travel. The immediate administrative consequences can also be significant even before the court case is finished.
FAQ
Is “I tried but couldn’t” the same as refusing?
Not always. The facts have to be reviewed carefully.
Do I still have rights after a breath demand?
Yes, but the timing and scope of those rights depend on the kind of demand and where the process has reached.
What should I do after a charge?
Get advice early and make a record of what happened, including what was said, whether you were ill or injured, and where the process broke down.
Failure to provide a breath sample: common variants
This offence is referred to in several ways. You may see it described as “refusing a breathalyzer,” “refusal to blow,” “failing to provide a breath sample,” “failing a roadside screening device,” or “failure to comply with a demand.” Under the Criminal Code, the charge is formally a “failure or refusal to comply with a demand” under section 320.15. All of these descriptions refer to the same or closely related offences, and the penalties are the same as those for an Over 80 conviction.
This charge commonly arises during roadside stops on Highway 400, Highway 26, and other routes through Simcoe County, as well as in Barrie, Collingwood, and surrounding communities. The Law Firm of Ted Yoannou appears regularly at the Barrie courthouse on these matters. If you have been charged with refusing a breath sample in Barrie or Simcoe County, contact us to discuss your case.
See also: Impaired Driving, Over 80, and Barrie Criminal Lawyers.