Breath Demands and Sobriety Tests in Toronto

Driving through the streets of Scarborough or across the 401 often means encountering R.I.D.E. (Reduce Impaired Driving Everywhere) checkpoints or standard traffic stops. For many Ontario drivers, the sight of a police officer approaching with a screening device creates immediate stress. Understanding how sobriety tests work is the first step in protecting your future.

Mandatory Alcohol Screening in Ontario

In the past, an officer needed to smell alcohol or see physical signs of impairment before they could demand a breath test, which is no longer the case. Under Section 320.27(2) of the Criminal Code, any driver lawfully stopped by police can be required to provide a breath sample using an approved screening device (ASD).

This process is known as Mandatory Alcohol Screening (MAS). It applies to any lawful stop, whether it is for a broken taillight, a routine document check, or a dedicated R.I.D.E. stop in Scarborough. The goal of this law is to increase the detection of impaired drivers, but it also means that sober individuals are frequently subjected to roadside testing.

Your Right to Counsel at Roadside

One of the most confusing aspects of Canadian law is when your right to speak with a legal professional begins. During a standard roadside breath demand, the Supreme Court of Canada has ruled that your Section 10(b) Charter rights, the right to retain and instruct counsel without delay, are temporarily suspended, meaning you are generally not permitted to call a law firm before blowing into a roadside ASD. The law requires you to provide the sample “immediately.” However, if the roadside test results in a “Fail” and you are arrested, your right to counsel is fully triggered. At that point, police must allow you to speak with a legal professional before you provide further samples at the station.

The Offence of Refusal or Failure to Comply

Many people believe that refusing a breath test is a better option than providing a sample that might be over the legal limit, which is a significant misconception. In Canada, Section 320.15(1) of the Criminal Code makes it a criminal offence to fail or refuse to comply with a lawful demand for a breath or blood sample.

The penalties for refusal are often just as severe as, or even harsher than, an actual impaired driving conviction. For a first-time offence, a conviction for refusal carries a mandatory minimum fine of $2,000 (Criminal Code, s. 320.19(5)), which is higher than the $1,000 minimum fine for a first-offence impaired driving charge with a lower blood alcohol concentration.

What Constitutes a Refusal?

A refusal does not always mean saying “no.” Police can charge you with failure to comply if you:

• Pretend to blow into the device without actually providing air.
• Stop blowing before the device has finished its reading.
• Purposely delay the test by asking excessive questions or demanding a lawyer.
• Fail to provide a suitable sample due to what the officer perceives as a lack of effort.

Standardized Field Sobriety Tests (SFST)

While breath demands are used for alcohol, police often use Standardized Field Sobriety Tests (SFST) if they suspect you are impaired by drugs or a combination of substances. Unlike alcohol screening, an officer must have “reasonable grounds to suspect” that you have drugs or alcohol in your system before demanding these physical tests.

The SFST typically consists of three specific exercises:

1. The Horizontal Gaze Nystagmus Test: The officer watches your eyes as they follow a moving object (such as a pen) to look for involuntary jerking.
2. The Walk-and-Turn Test: You are asked to walk heel-to-toe in a straight line, turn, and walk back.
3. The One-Leg Stand Test: You must balance on one leg while counting aloud.

Effective January 1, 2026, Ontario has increased penalties for those who fail an SFST. A first-time failure now results in an immediate 7-day roadside licence suspension, up from the previous 3 days. For a second-time failure the immediate suspension increases to 14 days and the third time failure remains at a 30 day suspension.

Defending Against Breath Demand and Refusal Charges

A charge is not a conviction. While the law gives police broad powers, those powers are not absolute. There are several ways our firm approaches the defence of breath demand and refusal charges.

Reasonable Excuse for Refusal

To be convicted of refusal, you must have refused “without reasonable excuse.” While the courts set a very high bar for this, certain medical conditions may qualify. For example, if a person suffers from severe chronic obstructive pulmonary disease (COPD) or another respiratory ailment that makes it physically impossible to provide enough air for the ASD, they may have a valid defence, which typically requires detailed medical evidence and expert testimony.

Charter Violations

The Canadian Charter of Rights and Freedoms protects individuals from unreasonable search and seizure (Section 8), as well as arbitrary detention (Section 9). If the police stopped you without any legal authority, or if they failed to provide you with your right to counsel as soon as it was legally required, the breath samples, or your refusal, might be excluded from evidence.

Procedural Errors

Breath testing equipment is sensitive and must be maintained in accordance with strict regulations. If the officer was not properly trained, if the device was not calibrated, or if the demand was not made “immediately” as required by law, the case against you may be compromised. In some cases, we find that the officer did not have the ASD in their physical possession at the time of the demand, which can render the requirement for an immediate sample invalid.–        

The Impact of a Criminal Record in Scarborough

A conviction for an impaired driving offence or a refusal goes beyond fines and suspensions. It results in a permanent criminal record, which can affect your ability to travel, particularly to the United States, and can be a significant barrier to employment opportunities. For many of our clients in the GTA, losing the ability to drive for a year or more makes it impossible to maintain their current career or family obligations.

Your Advocates in Toronto Impaired Driving Defence

Facing the Ontario court system alone can be overwhelming. AR Law Firm is a family-run company with over two decades of experience in criminal defence. We understand that these charges often affect good people who find themselves in difficult situations. Our firm provides the peace of mind that comes with knowing a dedicated legal professional is working to resolve your issue and protect your reputation.

We serve clients in Scarborough, Toronto, Oshawa and all across the Greater Toronto Area. If you have been charged with impaired driving or refusing a test, do not wait to seek guidance. The sooner we can review the evidence against you, the better we can prepare your defence.

Contact AR Law today at (416) 960-0781 to schedule your free consultation.