REFUSAL TO PROVIDE A BREATH SAMPLE

Drunk-driving laws in Calgary are harsh. Many people are surprised to hear that you can be charged with a crime by simply refusing to provide a breath sample to a police officer in certain situations.

Drivers often panic when stopped by police and may act in the heat of the moment. Refusing a breath test is generally a poor choice as you can be arrested and charged before you even know what’s happening.

Even if you escape a charge for impaired driving, you can still be charged with refusal to provide a breath sample.

However, like with all driving-related offences, representation from an experienced DUI lawyer can help prevent the serious consequences associated with a conviction.

Refusal to Provide a Breath Sample Calgary

When is refusal to provide a breath sample a crime?

There are two situations where you can be charged with a crime for refusing to provide a breath sample:

  • If you are stopped and suspected of having alcohol in your body
  • If your ability to operate a motor vehicle is impaired by alcohol consumption

Law enforcement can request that you provide a breath sample using an approved roadside screening device (ASD) or using a “breathalyzer”. You must comply with this request if it is lawful.

It is best to comply with the request and let your lawyer find out if it was lawful later on.

There is no obligation for police officers to allow you to speak to your lawyer before testing with an ASD but you can consult with a lawyer before providing a sample with a breathalyzer.

If you fail a roadside test, you may be required to provide a blood or urine sample at the police station. You should request to speak to your lawyer at that point if there is no opportunity to do so before.

If you are charged with the refusal to provide a breath sample, the court may convict you even if the charge of impaired driving cannot be proven. If the request for the sample was lawful, you may be found guilty unless you provide a reasonable defence for your actions.

Drunk-driving law is very technical and pleading guilty is rarely a good option. Strict procedural and timing laws apply, testing equipment can be called into question, and Charter rights must be upheld.

Many possible defences apply and cases can be dismissed or result in an acquittal at trial due to “technicalities” and problems for the prosecution with the inadmissibility of evidence.

Penalties for refusal to provide a breath sample

If you are convicted of refusal to provide a breath sample, you will be treated harshly by the justice system. The penalties are similar to those convicted of driving at or over 0.08 or impaired driving.

The immediate penalties depend greatly on your prior criminal record. There is a maximum penalty of five years in jail and minimum penalties apply as follows:

  • For a first offence: A $1,000 fine and driving prohibition of one year
  • For a second offence: 30 days in jail and a driving prohibition of two years
  • Third offence or more: 120-days in jail and a driving prohibition of three years

However, these penalties are just the start of your problems.

The criminal conviction will appear on your record in background checks, which can negatively impact your employment, freedom of travel, housing arrangements, insurance premiums, and (for non-Canadian citizens) immigration status.

Defences for refusal to provide a breath sample

Defending a charge of refusal to provide a breath sample is often challenging but there can be lawful grounds for refusal in certain circumstances.

Fortunately, too, law enforcement does not always follow the strict protocols necessary to achieve a conviction in court.

We will consider all of the available evidence and start building a defence around your version of events and what happened at the scene of the stop.

The most common arguments used to defend this charge include:

  • Medical reasons – a medical inability to provide a sample
  • Neglect of Charter rights and freedoms by law enforcement
  • Neglect of your right to speak to a lawyer by law enforcement
  • The consequences of refusing to provide a breath sample were not explained to you
  • Inadequate opportunities to provide a sample (including a final opportunity to do so)
  • Unlawful request by police officers (insufficient grounds)

Timing is also important in drunk-driving cases. Many times, if the police requests and collection of samples were not performed within specific timeframes, the evidence can be deemed inadmissible in court and the case dismissed.

Defences are technical and frequently complex. It is important to have the right legal experience on your side when challenging the claims of the prosecution.

If you have a medical condition that prevented you from providing a sample, we will obtain the necessary evidence from a medical professional to present in court.

Call Us To Arrange A Confidential Consultation

To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.

Impaired Driving/DUI FAQ

  1. What is impaired driving?
  2. What is ignition interlock?
  3. How long does a DUI stay on your record?
  4. Will I go to jail if I drive while impaired? 
  5. How do I beat a DUI/Impaired driving charge?

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no-obligation consultation.