Refusing a breathalyzer test in Ontario is never a good idea. It may be tempting to refuse in some situations, but there are serious legal consequences to doing so. In reality, these penalties are often worse than if you took the test and failed it.
Whether you have already refused a test or are simply curious, it’s important to know what the next steps are. Here we’ll guide you through the legal consequences, including why you shouldn’t refuse the test, and what to do if you have already done so.
What Canadian Law Says about Refusing a Breathalyzer
It is a criminal offence to fail to provide a breath sample when a police officer makes a lawful demand for you to do so. This demand could be a handheld device on the roadside or back at a police station. If you know you are over the limit, avoiding criminal consequences at this point is impossible.
It used to be that police officers could only request a test if they suspected you were drinking. However, in most cases, they can now request a test during any lawful traffic stop. This is called mandatory alcohol screening and has the same consequences.
If you feel as though the traffic stop wasn’t lawful and there are no legal grounds for the request, you should still take the test. It’s better to argue the legality of a traffic stop in court rather than refuse a test at the roadside.
Related Article: https://www.agpllp.ca/10-common-dui-defence-strategies-in-ontario/
Immediate Roadside Consequences
Even before you head to court, you will be subject to various penalties if you refuse a breath test. Essentially, you will be treated as if you failed the test and will get the same punishments as someone who was proven to be over the limit. This includes:
- An immediate 90-day driver’s licence suspension
- A 7-day vehicle impoundment
- A $550 administration penalty
- Costs of vehicle impoundment
Criminal Penalties for Refusing a Breathalyzer Test
Following the roadside penalties, you will then be placed in the same category as someone who was driving over the limit. There are minimum penalties here:
- A $2,000 fine
- A mandatory one-year driving prohibition across Canada
Repeat offences will come with minimum jail terms, which are 30 days in jail for a second offence, and 120 days in jail for a third offence. It’s important to note that these are only minimum sentences. If there were aggravating factors, such as if there was an injury, the case would be dealt with more severely.
Judges will have the discretion to impose longer driving bans and jail terms, along with other powers. It’s important to note that the fine for a first-time DUI is $1,000, so you’ll actually be facing a harsher fine than simply blowing over the legal limit.
Provincial Consequences After Conviction
The consequences also go beyond fines and potential jail time. In Ontario, you will also be required to go through some non-negotiable steps.
Ignition interlock – This is essentially a breathalyzer for your car. It works by only allowing you to start your car following a test. Not only do you need to have this installed for a year, but you also need to pay for its maintenance.
Mandatory education or treatment – You will have to go through one of these two options before having your license reinstated.
Reinstatement fees and tests – You’ll pay licence reinstatement fees as well as pay for the punishments above.
Related Article: https://www.agpllp.ca/how-to-get-a-licence-reinstated-in-ontario-after-a-dui-suspension/
What If You Can’t Take a Breathalyzer Test?
You can avoid taking a breathalyzer test if you have a reasonable excuse not to do so. However, the bar for this is extremely high. You can’t avoid it simply because you say you have a cold or some other excuse.
An example may be a severe lung disorder that could prevent you from blowing into the device. Having a reasonable excuse is extremely difficult, as if there is a reason you can’t take the test, then you probably shouldn’t have been driving in the first place.
As mentioned, even if you think the test isn’t lawful, take it. Police officers are very careful about ensuring the test is valid. If you think it’s not, speak to an experienced DUI lawyer after your arrest, who will look at your case. If rights have been violated, this can make evidence inadmissible.
FAQs
Is refusing a breathalyzer test better than failing?
No, it’s worse. You will be seen as guilty and face an even higher fine than you would have received if you failed the test. Aside from the higher fine, you’ll receive the same criminal punishments as someone who failed the test.
What should you do if you’re stopped for a breathalyzer test?
Whatever your thoughts about the validity of the stop or the conduct of the police, comply. You may be frustrated or scared, but refusing will always make things worse. If you fail the test and are arrested, contact a lawyer as soon as possible.
Will refusing a breathalyzer affect my insurance rates?
Yes. You will be treated the same as someone who failed a test. This will affect your insurance rates the same as someone who was proven to be over the limit.
Can medical conditions be used as a defence for refusing a breathalyzer?
Technically, yes. In reality, proving this is exceptionally difficult. The burden to prove this is very high, and the police have alternative methods of testing aside from the breath test. Don’t attempt to do this unless you literally cannot take the test.
Do I have the right to talk to a lawyer before taking a breathalyzer test?
Not before a roadside test. You don’t have the right to legal counsel at this stage. However, you do have the right to a lawyer before taking an intoxilyzer test at a police station. This is a right you should exercise.
Final Thoughts
As we’ve seen, refusing a breathalyzer in Ontario is often treated even more harshly than a failed test. You get a higher fine along with the same punishments in other areas. If you are asked to take a test, it’s in your best interests to comply.
Once you do, you can then speak to your lawyer and work on possible defences, as well as look at whether your rights were violated. If you need legal help, contact AGP today, and we’ll be happy to see how we can help your case.
