Let’s break down refusing a breath sample in Ontario: If you’re pulled over and a police officer demands a breath sample, refusing to comply may seem like a way to avoid trouble. In reality, refusing to provide a breath sample is a criminal offence under the Criminal Code of Canada, and the penalties can be just as serious—if not more—than those for impaired driving.
In this article, we’ll break down what happens when you refuse to blow, how this charge compares to an impaired driving offence, and what legal defences may be available.
What Does “Refuse to Blow” Mean in Ontario?
“Refuse to Blow” refers to the failure or refusal to provide a breath sample when lawfully demanded by a police officer. This typically occurs during:
- A roadside stop (screening demand)
- At the police station (after arrest)
Under Section 320.15 of the Criminal Code, refusing a lawful demand for a breath test—without a reasonable excuse—is a criminal offence. Police do not need to prove that you were impaired to charge you. The refusal itself is enough.
What Happens If You Refuse a Breath Test?
A refusal charge triggers both criminal and provincial consequences:
Criminal Penalties (First Offence):
- Mandatory $2,000 fine
- Criminal record
- Minimum one-year driving prohibition
- Potential jail time for repeat offences
Ontario Penalties:
- Immediate 90-day licence suspension
- Mandatory Ignition Interlock installation (once eligible to drive again)
- Mandatory participation in the Back on Track program
- Significant insurance premium increases
These penalties mirror, and in some cases exceed, the consequences of being charged with impaired driving or blowing over 80.
How Does This Compare to an “Over 80” Charge?
While both offences are serious, refusing to blow often carries stricter minimum penalties, including a higher fine. Courts tend to take refusal charges seriously because they are seen as a way to obstruct justice or avoid giving evidence.
The refusal also removes the opportunity to argue that your BAC was below the legal limit, which could otherwise help your case.
Common Defences to a Refusal Charge
Despite the seriousness of the charge, there are legal defences that may apply. These include:
1. No Lawful Demand Was Made
The officer must have proper grounds to request a breath sample. If they did not follow protocol or lacked reasonable suspicion, the demand may be invalid.
2. Lack of Understanding
If you were confused, had a language barrier, or a medical condition that prevented you from understanding the request, this may serve as a defence.
3. Medical Inability
If you were physically unable to provide a sample due to a health issue (e.g. asthma, anxiety, lung condition), and this can be medically verified, the refusal may be excused.
4. Improper or Delayed Rights to Counsel
If your right to consult with a lawyer was not offered or properly explained before the demand, it may be a violation of your Charter rights, which can lead to the charge being dismissed.
Why Legal Representation Matters
Refusal charges are complex, and the stakes are high. Convictions can affect employment, travel, and your financial future. An experienced legal representative can help by:
- Reviewing the officer’s notes and disclosure
- Identifying procedural errors
- Challenging the lawfulness of the stop or demand
- Building a strong case for withdrawal or reduction
In many cases, we can appear in court on your behalf and work to resolve the matter with minimal disruption to your life.
Charged With Refusing a Breath Test?
Don’t take chances with a criminal record. If you’ve been charged with refusing to blow in Ontario, you still have options. Contact The Traffic Lawyers for a confidential consultation. We’ll review your case, explain your rights, and help you build the strongest defence possible.
