In Canada, police don’t need a reason to make a preliminary demand for a breath sample to test for alcohol if you’re lawfully pulled over for a roadside check. However, the requirements are different for drug testing: police need a reasonable suspicion that you have consumed drugs before they can make a demand for an oral fluid sample or other roadside drug test.
If police make a lawful demand for a sample and you refuse to give a breath or saliva sample, you will be charged with the criminal offence of refusing to comply with a demand for a sample. And, the fine for refusing to comply with a demand is higher than the fines for most impaired driving charges. The mandatory minimum fine for a first offence of refusing to comply with a demand is $2000. This is twice as much as what you would be fined if convicted of driving with a blood alcohol concentration (BAC) of 80-119 mgs, which has a mandatory minimum fine of $1000. It’s also twice as much as the fine for a first offence of driving under the influence of drugs, including THC (the active ingredient in cannabis), cocaine, methamphetamine, 6-mam, ketamine, LSD, psilocybin and psilocin.
If convicted, refusing to comply with a demand will also result in a one-year driving suspension for a first offence. A second offence carries a minimum mandatory jail sentence of 30 days. Clearly, Ontario laws were designed to deter drivers from refusing to provide a sample in order to evade a possible impaired driving charge.
Further, if police make a roadside demand for a breath test, you do not have the right to call your lawyer before providing a breath sample. The right to counsel is suspended until arresting officers have completed their investigation to determine whether they have reasonable grounds to make an arrest. However, you must be given the opportunity to speak to a lawyer once you have been detained.
Not only are you legally obligated to comply with a demand for a sample, but there is also no advantage in refusing to do so. And, there are very few excuses for refusing to comply that the Courts may accept as a legitimate reason. Possible conditions that can, in rare cases, prevent someone from providing an appropriate sample are: respiratory conditions such as asthma, injury, or an anxiety attack. These conditions may provide a suitable defence, particularly if you can produce a doctor’s statement to support your condition. In either situation, whether you refuse to give a sample or are unable to give an adequate sample, you will be charged with failing to comply with a sample. However, a knowledgeable DUI lawyer may be able to mount a successful defence if you attempted to comply and can provide evidence of the medical condition that prevented you from giving an adequate sample.
Court acquits man of failing to provide a breath sample: R. v. King
In a recent criminal trial, R. v. King, an Ontario Court found a man not guilty of failing to provide a breath sample because there was reason to believe that the man may have genuinely tried to provide a breath sample but was not able to do so due to breathing problems. As a result, there was also reasonable doubt that the Crown had proven the impaired driving charge, so the defendant was acquitted on both charges.
R. v. King involves a Cambridge, Ontario man who was charged with impaired driving after being found at the scene of a single-car collision, where the driver exhibited signs of alcohol consumption, including slurred speech, glassy eyes, slow responses and the odor of alcohol on his breath. After the arresting officer made a lawful breath demand, the defendant failed to provide the breath technician with a suitable and adequate breath sample. Video of the breath testing process indicated that the defendant successively blew into the device but the results never registered and the defendant grew increasingly frustrated and angry during his attempts.
The defendant gave testimony that he works in metal finishing and is commonly exposed to toxic chemicals in the air, including hydrochloric acid and other metal cleaners, and these conditions affect his breathing and aggravate his asthma. Due to his difficulties in giving a breath sample, the defendant offered to provide a blood sample and/or undergo testing on another device, which suggested that his failure to provide a sample may not have been intentional.
Justice Latimer found that, on one hand, the defendant’s interactions with the officer raised suspicion that he may have been trying not to provide an adequate sample in order to evade the results of the test; however, the judge also noted that the defendant’s offer to provide a blood sample was inconsistent with someone who wants to frustrate the investigator’s attempts to determine his blood alcohol concentration. The latter circumstance raised reasonable doubt that the defendant was purposefully trying to avoid providing a breath sample, and consequently, Justice Latimer found him not guilty of failing to provide a sample.