Reasonable excuses for refusing to take a breathalyzer test

As I explained in my previous blog entry on the offense of refusing to submit to a breathalyzer test, it’s up to the Crown to prove beyond a reasonable doubt that you unequivocally refused to obey the order and that you had the intent to refuse.

This applies equally whether you refuse to breathe into an approved screening device at roadside or you refuse to breathe into a breathalyzer at the police station. Every essential element of the violation must be proved beyond a reasonable doubt before the question of reasonable excuse can be raised.

These elements are as follows:

  • The existence of an order by a peace officer
  • The failure or refusal of the accused to provide the required breath or blood sample
  • Proof of the accused’s intent to produce the aforementioned result

If the Crown discharges its burden of proof with regard to each of these elements, the accused will be presumed to have committed the offense, unless he or she can assert a reasonable excuse.

To determine whether a given behavior constitutes a refusal, the court must take all of the proof into account in order to be sure that the actions of the accused were voluntary. Let’s not forget that the intent of the accused can be inferred from certain behaviors, such as pretending to blow into the device.

Intent vs reasonable excuse

Intent shouldn’t be confused with the defense of reasonable excuse. It’s up to the Crown to prove beyond a reasonable doubt that you had the intent to refuse to breathe into the device; however, if you choose to use reasonable excuse as a defense, the burden of proof will rest on you.

Therefore, it’s advisable to have an expert witness on hand to support your defense in court, for example, if you were unable to blow into the device because of an asthmatic condition. After hearing the proof given during the proceedings, if the court doesn’t believe you when you state that you breathed into the device as requested, it goes without saying that the court will conclude that you failed to comply with the order to submit to the breathalyzer test. It all boils down to your credibility.

What’s a reasonable excuse?

The term reasonable excuse should be understood as an excuse based on circumstances that would have made compliance extremely difficult or hazardous to the health of the person ordered to submit to the test. However, it could also encompass any valid reason for which a reasonable person would have refused to submit to the test. Therefore, it may include excuses that aren’t necessarily based on medical considerations. This is why, for example, behavior on the part of a police officer inspiring a lack of trust has sometimes been deemed a reasonable excuse.

Any reasonable excuse submitted to the court essentially implies a question of the facts. Reasonableness must not be assessed simply on the grounds of the sincerity of the person affirming the excuse but, rather, on what is objectively reasonable as an excuse.

Needless to say, as long as the accused attempted to submit to the order to provide the required breath sample and appears to have complied with the peace officer’s request, the prosecution must prove that the peace officer provided an adequate explanation to ensure the success of the test, that the accused appeared to understand the explanation and that the peace officer verified that the device was in proper working condition and that the mouthpiece was functioning correctly and wasn’t obstructed.

On the other hand, when there has been a clear lack of cooperation on the part of the accused during the test, the Crown must prove beyond a reasonable doubt that it was an intentional violation of the order. In that case, the court will not need to ponder the question of reasonable excuse.

Each case must be examined by the court in order to determine if the excuse is reasonable, as there is no set list of criteria.

Therefore, the following could possibly constitute a reasonable excuse:

  • Serious health problems, such as lung conditions, heart conditions, diabetes, serious injuries, hyperventilation, shortness of breath caused by asthma, extreme nervousness or breathing problems resulting from a panic attack

That said, a reasonable excuse must be evaluated on a case-by-case basis, taking all of the circumstances into account.

The following do not constitute a reasonable excuse:

Furthermore, the law doesn’t recognize a severe state of intoxication as a reasonable excuse justifying your failure or refusal to provide a breath sample if you’ve been ordered to do so.

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