You’re on your way home, coming back from watching a hockey game at the local sports bar with friends. You’re two blocks from your residence when you make that last right turn only to meet a lineup of vehicles, with blue and red flashing lights in the distance. The police are conducting a RIDE program. Soon after a uniformed officer walks up to your driver’s side window. The officer asks you a few basic questions on your whereabouts this evening. You comply and answer his questions. The officer then informs you that he has reason to suspect that you’ve been drinking and driving and ask you for a breath sample.

Do you have a right to refuse the officer's demand?

Although the officer cannot physically force you to provde a breath sample, refusing to comply with the officer’s demand is an offense, under section 254 of the Criminal Code, with serious consequences. In fact, the penalties are essentially the same as if you had failed the Breathalyzer test. Furthermore, a conviction may affect your livelihood, your ability to travel abroad and will likely increase your insurance rates.

Generally, lawyers will tell their clients provide a breath sample, because it’s usually only after having reviewed the disclosure that a lawyer can determine what types of defence have a reasonable chance of success.

What must the prosecution prove?

When someone refuses to comply with an officer’s demand of a breath sample, the prosecution must prove beyond reasonable doubt the element of actus reus, namely that a reasonable demand was made by the officer and that you failed or refused to provide the required breath sample. The prosecution must also prove the element of mens rea, namely that understood the officers demand and that the refusal was a conscious act.

For many people accused of refusing to provide a breath sample, this may bring feelings of embarrassment, helplessness and guilt, which in return may lead them to plead guilty and just get it over with. Although there is an incentive to pleading guilty early, namely within 90 days of the offense, before doing so, consulting with a criminal lawyer as soon as possible is highly recommended. Drinking and driving offenses are very complex and the defences will vary according to the facts of your case, therefore we welcome you to call for a free initial contact with one of our criminal lawyers.