Refusing a Breathalyzer in Ontario

Many drivers in Scarborough and across the Greater Toronto Area (GTA) mistakenly believe they have the right to refuse when a police officer asks for a breath sample. You might think that by not blowing, you are protecting yourself from a potential charge. But refusing a breathalyzer in Ontario often results in penalties that are just as severe, and sometimes even more costly, than the impaired driving charges you may be trying to avoid.

Understanding Mandatory Alcohol Screening (MAS)

Since December 2018, the legal landscape for traffic stops in Ontario has undergone significant changes. Under section 320.27(2) of the Criminal Code of Canada, police officers in possession of an approved screening device (ASD) can demand a breath sample from any driver they have lawfully pulled over.

The officer does not need a reasonable suspicion that you have been drinking. They do not need to smell alcohol on your breath or observe slurred speech, which is known as Mandatory Alcohol Screening (MAS). If the officer has the device with them, the demand is legal, and you are required to comply immediately.

The Immediate Consequences of a Refusal

When you refuse to provide a breath sample at the roadside, you are not just walking away from a test; you are triggering an immediate set of administrative penalties. 

Under the Ontario Highway Traffic Act, a refusal results in:

• An immediate 90-day administrative driver’s licence suspension.
• A mandatory seven-day vehicle impoundment (regardless of who owns the car).
• A $550 administrative penalty fee.
• A $281 licence reinstatement fee once the suspension ends.

These consequences happen on the spot. These are administrative actions, they apply even if you are later found not guilty of the criminal charge in court.

Criminal Penalties for Refusing a Sample

Refusing to comply with a lawful demand is a standalone criminal offence under section 320.15(1) of the Criminal Code. The Canadian legal system treats this seriously because it is seen as an attempt to obstruct the investigation of impaired driving.

For a first-time offender, the mandatory minimum fine for a refusal is $2,000 (Section 320.19(4) of the Criminal Code), which is notably higher than the $1,000 minimum fine for a standard impaired driving conviction where the driver’s blood alcohol concentration (BAC) is between 80 and 119 mg. The law is designed to ensure there is no financial benefit to refusing the test.

Beyond the fine, a conviction results in:

• A minimum one-year driving prohibition across all of Canada.
• A permanent criminal record.Mandatory enrollment in the Back on Track education and treatment program.
• The requirement to use an ignition interlock device for at least one year once your licence is reinstated.

If you have prior convictions for impaired driving or refusal within the last 10 years, the penalties escalate to mandatory jail time. You face 30 days minimum for a second offense and 120 days minimum for a third or subsequent offense, according to the Criminal Code, s. 320.19(1).

Do You Have the Right to a Lawyer at the Roadside?

One of the most common points of confusion for drivers in Scarborough is when they are permitted to consult with a lawyer. Under the Canadian Charter of Rights and Freedoms, you generally have the right to retain and instruct counsel without delay upon arrest or detention.

Even so, the Supreme Court of Canada ruled in cases like R. v. Thomsen that this right is temporarily suspended for roadside breath tests, allowing police to determine quickly whether a driver is impaired, which means you do not have the right to call a law firm before blowing into the roadside ASD. If you insist on calling a lawyer before complying with a roadside demand, the police will likely charge you with refusal.

The right to speak with a lawyer only fully crystallizes once you are arrested and taken to the police station for a more formal Intoxilyzer test or if there is an unusual delay in the roadside process.

Potential Defences for Refusal Charges

While the law is strict, being charged does not mean you will be convicted. At AR Law, our law firm looks at every detail of the police interaction to identify where your rights may have been overlooked. A refusal charge can sometimes be defended if the demand itself was not lawful.

For example, if the police did not have the screening device immediately available and made you wait an unreasonable amount of time, the demand might be considered invalid. Another possible defence is a reasonable excuse, which is a high bar to meet and usually involves a medical condition that makes it physically impossible for a person to provide enough breath to trigger the machine. In such cases, medical records and expert testimony are often necessary to prove the inability to comply was not a deliberate choice.

AR Law: Dedicated Defence for Scarborough Residents

Facing a refusal charge can feel overwhelming, but you do not have to handle it alone. AR Law is a family-operated firm that understands the stress a criminal charge puts on your household and your future. We focus on solving the problem for our clients by providing a strategic, evidence-based defence designed to provide you with peace of mind.

If you have been charged with refusing a breathalyzer in Scarborough or the surrounding area, contact AR Law today at (416) 960-0781 to schedule your free consultation.