A conviction for refusing to provide a breath sample carries severe penalties, comparable to those for driving with a blood alcohol concentration (BAC) of 0.08 or higher, or for impaired driving. Penalties vary based on prior criminal records:

First Offence: A fine of $1,000 and a one-year driving prohibition.

Second Offence: 30 days in jail and a two-year driving prohibition.

Third Offence or More: 120 days in jail and a three-year driving prohibition.

Beyond these immediate penalties, a criminal conviction can have long-term impacts, affecting your employment, travel, housing, insurance premiums, and, for non-Canadian citizens, immigration status.

Defending against a charge of refusal to provide a breath sample can be challenging, but there are potential grounds for a lawful refusal. Additionally, law enforcement may not always adhere to necessary protocols, which can affect the outcome of your case.

Common defences include:

Medical Reasons: Demonstrating a medical condition that prevented you from providing a sample.

Charter Rights Violations: If law enforcement neglected your Charter rights.

Right to Legal Counsel: If you were denied the opportunity to consult with a lawyer.

Inadequate Explanation: If the consequences of refusal were not properly explained to you.

Insufficient Opportunity: If you were not given adequate opportunity to provide a sample, including a final chance.

Unlawful Request: If the request for a sample was made without sufficient grounds.

Refusal to provide a breath sample can lead to criminal charges under specific circumstances. You can face charges if:

You are stopped and suspected of alcohol consumption.

Your ability to operate a motor vehicle is impaired by alcohol.

Law enforcement officers may request a breath sample using an approved roadside screening device (ASD) or a breathalyzer. It is essential to comply with this request if it is lawful.

It’s generally advisable to comply with the request and later have your lawyer review the legality of the request. While there is no obligation for officers to allow you to consult with your lawyer before taking an ASD test, you do have the right to speak with a lawyer before providing a sample with a breathalyzer.

If you fail a roadside test, you might be required to provide a blood or urine sample at the police station. At this stage, if you haven't had the opportunity to speak with a lawyer, you should request to do so immediately.

A refusal to provide a breath sample can lead to a conviction even if impaired driving cannot be proven. If the request for a sample was lawful, you could be found guilty unless you present a reasonable defence.

Drunk-driving law involves complex technicalities, and pleading guilty is rarely advisable. Procedural and timing laws are strict, testing equipment can be scrutinized, and Charter rights must be upheld. There are many potential defences, and cases can sometimes be dismissed or result in an acquittal due to procedural errors or issues with evidence admissibility.