Is the refusal to take a breathalyzer test a criminal offense?

While you’re at the wheel of your vehicle or simply inside it, a peace officer stops you and asks you to submit to a breath alcohol test. Do you have the right to refuse? What are the consequences of refusing to blow into an approved screening device?

Refusal according to the Criminal Code

The violation established in Section 320.15 (1) of the Criminal Code contains several important elements that must be clearly defined. The section reads as follows:

320.15 (1) Failure or refusal to comply with demand

Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

Section 320.27 deals with verification of the presence of alcohol or drugs, whether through a physical coordination test, samples of the individual’s breath or samples of a bodily substance to be analyzed. It reads as follows:

320.27 Testing for presence of alcohol or drug

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

What you should know about refusing to take a breathalyzer test

1. 1. The peace officer who has reasonable grounds to suspect the presence of alcohol in your blood will order you to provide a breath sample by blowing into an approved screening device, whether you’re the driver of the vehicle or the person who has possession and control of the vehicle.
   2. The officer isn’t obligated to follow an official formula when ordering you to submit to the test. What matters is that you understand that you don’t have a choice and that you must comply. The officer also isn’t obligated to inform you that failure to comply will bring about charges of refusal.
   3. For the order to be valid, the officer’s suspicions must exist at the time the officer gives you the order. It is recognized that the simple presence of alcohol on a driver’s breath is sufficient cause for reasonable suspicion.
   4. According to the instructions of the Supreme Court, reasonable suspicion may not be based simply on the peace officer’s intuition. Reasonable suspicion represents a reasonable possibility, whereas reasonable grounds correspond to a reasonable probability. Therefore, the criterion is less rigorous at this stage of reasonable suspicion.
   5. The order must be given immediately or as soon as possible after the peace officer has grounds to suspect the presence of alcohol in your body. But make no mistake about it. While this generally signifies “right away,” “in the field” or “within a short period,” in exceptional cases, a brief waiting period may be justified.
   6. During the short delay between the time you’re stopped and the time the breathalyzer test is administered, you aren’t allowed to invoke your right to an attorney because of the nature and brief character of this type of roadside police investigation. This is why the procedure must remain brief in order to fulfill the condition of immediacy as established in Section 320.1 (1) of the Criminal Code.
   7. The refusal to obey may be proven by your words or it may be deduced from your behavior. Therefore, it is strongly discouraged to try to outsmart the test by pretending to blow, as you’ll risk being found guilty of refusal by the court. In my experience, the most common inappropriate behaviors include the following:
      • Tightening one’s lips
      • Placing one’s tongue or teeth on the end piece
      • Blowing so feebly that the device indicates insufficient flow
      • Blowing too hard
      • Inhaling from the device instead of exhaling into it

1. 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.
2. During the legal proceedings, the judge must be convinced that the lack of results on the approved screening device following your attempts to blow into it were, in fact, the result of your refusal to provide the breath sample and not because the device malfunctioned.
3. Depending on the circumstances mentioned above, the judge may infer the intent of your behavior, as one generally expects the consequences of one’s actions.

Establishing the intent to refuse

It’s important to understand that the intent to refuse to submit to an order is one of the essential elements that the Crown must establish beyond a reasonable doubt and that this element must not be confused with the defense of a reasonable excuse, which can be pleaded during legal proceedings. It’s well-established by legal precedent that intoxication may not be used as a defense for getting out of charges of failure or refusal to comply pursuant to Section 320.15 (1) of the Criminal Code.

We’ll revisit the topic of reasonable excuses in a separate article and explain how these can be raised before the court in order for a defendant to be acquitted of charges of refusal.