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Your Legal Rights Taking a Breathalyzer in Ontario


When you are pulled over and an officer suspects you of driving impaired, it is common to feel nervous. Many who have not been in this situation before are unsure what to do and do not know what their rights are. At some point, it is likely that the officer will ask you take a breath test, and you will have to make a decision. If you decide to refuse the breath test, you will be charged with refusing a breath sample. If the court determines you had no reason to refuse the test and you are convicted, then you will face the same penalties as if you had taken the test and failed. Even if you are not convicted, the police officer can suspend your license for between one to three days.

On the other hand, if you take the test, it is possible that you will register a blood alcohol level over .08, and you will then be charged with driving over 80. Even if you test for a blood alcohol level under .08, if it is over .05, you can receive administrative fines and a three-day license suspension for testing within “the warn range.”

If you do decide to refuse the sample and are charged, it does not mean that your case is hopeless. You still have a right to defend yourself at trial, and there are many ways to defend yourself from this type of traffic offense in Ontario. At the Traffic Lawyers, we have experience defending clients from refuse a breath sample charges, and we can help you get the best possible outcome.

Contesting Your Refusal to Give a Breath Sample

If you’ve never been in this situation before, you may think that you have no way to defend yourself against a charge of refusing a breath sample. After all, you did refuse the sample. However, if you can prove that the demand for the breath sample was unwarranted, then the charges will be dismissed. No matter what the officer may have you believe, you do have rights taking a Breathalyzer in Ontario. Police officers have strict rules about when they can demand someone to give a breath sample. If the police officer did not follow those procedures and did not have cause, then you will likely win your case.

In order for a police officer to have lawfully demanded a breath sample, he must have reasonable and probable grounds to suspect that you are driving under the influence of drugs or alcohol, such as smelling beer or alcohol on your breath. In court, the police officer will have to prove that it was reasonable and provide details. Acceptable reasons for demanding a breath sample include observing unusual driving, behaviour, movements, appearance, or answering of questions. At court, your attorney will work to show that the police officer did not observe enough of these signs to warrant a breath sample demand, and if the court agrees, you will not be convicted.

Other Defenses for Refusal to Provide a Sample

Though that is the most common way to defend yourself from these types of charges, there are other ways you fight a charge of refusal. In some cases, a defendant has a medical reason why he or she could not offer a breath sample or could not blow hard enough to give a usable sample. If the attorney can prove that he had a valid medical reason, the case may also be dismissed.

Before the police officer demands a breath sample, he must first have a probable cause to stop your car. If the police officer had no valid reason to stop you in the first place, it is possible that the court will dismiss your case.

Right to an Attorney

You should know that there are two types of breath samples. The breath samples taken at the side of the road use a smaller and less accurate machine to measure your blood alcohol. The Breathalyzer at the station gives a more precise reading. After being arrested for driving impaired or refusing to give a breath sample, the police officer will take you to the station and demand that you provide a Breathalyzer sample. If you refuse either the roadside or station test, you will be charged with refusal to give a sample.

Though you do not have a right to an attorney before a roadside test, you do have the right to an attorney before a Breathalyzer test in the station in Ontario. If you were not provided with this right, you may be able to get the case dismissed.

Penalties for Refusing to Give a Breath Sample

After your refusal, the officer may immediately arrest you and suspend your driver’s license for up to three days. If you are found guilty at your trial, you face additional penalties that are much more severe. In fact, the penalties for refusing to give a breath sample are exactly the same as the penalties for giving a breath sample and failing. In Ontario, these penalties include:

Suspension of your driver’s license for up to one year

Fine of $1000-2000

Education, remediation, and counselling for alcohol abuse and drinking and driving

Ignition interlock period for up to one year after your license is returned

In addition, your car insurance payments may increase by thousands of dollars per year, and the offence will be permanently included in your criminal record. Once your license suspension has ended, it can cost an additional $3,500 to reinstate your driver’s license.

Hire an Experienced Traffic Attorney

Remember that you are not guilty until you have been proved guilty in court. A judge, not the officer, determines whether the officer was allowed to demand a sample. With an experienced attorney, you can mount a strong defence and explain why the police officer was being unreasonable.

At the Traffic Lawyers, we are attorneys who have years of experience defending people from all types of traffic offenses in Ontario. We can help explain your legal rights in situations regarding Breathalyzer samples. We know what types of defences are most effective against charges of refusing to give a sample, and we can provide that expertise and guidance to help you.

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