The Criminal Code sets out a criminal offence of refusing to provide a breath sample. The offence can be committed when a person refuses to blow into a roadside screening device (the device used by police while on a traffic stop) or when a person refuses to blow into the breathalyzer instrument itself (the more accurate and admissible instrument used to test a person's blood alcohol level, typically an Intoxilyzer 5000 or Intoxilyzer 8000).

CRIMINAL CODE PROVISIONS

The offence of refusing to provide a breath sample is contained in section 254 of the Criminal Code and reads as follows:

254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

PUNISHMENT

The penalties for refusing to provide a breath sample pursuant to section 254(5) of the Criminal Code are exactly the same as the penalties available for an impaired driving or over 80 charge. From a logistical standpoint, this makes sense: a person should not be rewarded for refusing to provide a sample, by having access to a lesser penalty. The offence is, of course, easier for the Crown to prove than the impaired or over 80 counterparts, since the refusal is usually caught on video tape, or witnessed by several officers.

The penalties begin with a mandatory minimum fine of $1000.00 for a first time offender. A second time offender will face a mandatory term of incarceration of 30 days. A third time offender will face a mandatory minimum jail term of 120 days. Beyond that, the jail terms will continue to go up to a maximum jail term of 5 years, so long as no fatality or bodily harm resulted. Notably, the mandatory minimums make it legally impossible to spare the client a criminal record upon conviction for a refuse to provide sample offence.

DRIVING PROHIBITION

In addition to the punishment provisions attached to a conviction for refusing to provide a breath sample, the Court is required to impose a "driving prohibition." A prohibition is a court order that prohibits a person from driving a motor vehicle anywhere in Canada. The definition of motor vehicle within the Criminal Code of Canada, is quite broad. It reads as follows:

2. "motor vehicle" means a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment;

This expansive definition includes cars, trucks, motor cycles, but also boats, ride-on lawnmowers, airplanes and even bicycles with motor assisted pedals.

On a first conviction for refusing to provide a breath sample, the Court is required to impose a minimum prohibition of 1 year. On a second conviction, the Court must impost a minimum 2 year driving prohibition, and on a third conviction, a mandatory driving prohibition of 3 years applies. These are only the mandatory minimums. Depending on the facts of a particular case, the court may impose a longer prohibition.

LICENCE SUSPENSION

Upon a conviction for a criminal offence that involves driving, the Ontario Highway Traffic Act stipulates that the Province (as opposed to the Court) can imposed a driving suspension. The suspension operates in addition to the driving prohibition that the Court will impose. The driving suspension is only implemented in the Province of Ontario, but can delay the process for getting your driver's licence reinstated. There are scenarios where the Court imposes a one year prohibition, but the province imposes a three year driving suspension. Before entering a plea of guilt, anyone with any degree of "in-house" driving history within the province should consult with Mr. Lewandowski.

ARE THERE DEFENCES TO REFUSING TO PROVIDE A SAMPLE?

Generally, a charge of refusing to provide a sample is proven by calling all officers who were present when the "refusal" occurred. Often, the refusal is caught on video and the entire transaction is easily viewed. In these cases, the tape is usually determinative. In other cases, where the officer's word is pit against that of the accused, a more nuanced analysis is required.

Some questions that need to be example, include whether the officer had grounds to make the breath demand in the first place, whether the demand was clear, whether the refusal to blow was unequivocal, and whether the officer provided the accused one "last chance" to blow. Charter issues may also arise. Was there a delay in making the demand? Was there a delay in the availability of the roadside screening device, or breathalyzer? During those delays, did the police facilitate a call to counsel? Despite the seemingly benign nature of the charge, there are was of defending the charge of refusing to provide a breath sample. Each case must be examined on its unique facts to determine the many avenues of attack that may be available.

CRIMINAL LAWYER PAUL LEWANDOWSKI'S ANALYSIS OF SECTION 254

In my career, I have defended many people charged with refusing to provide a breath sample. Most of those clients who made the decision to refuse, did so with a split second decision, not knowing their rights. While any lawyer would know that it is a criminal offence to refuse to blow, most accused's who come before the court had absolutely no idea that this was the case. Most refused while at the same time asking to speak to a lawyer first. Unfortunately, the Criminal Code states that "ignorance" to the law is no defence, and the case law on this topic is not much better. That being said, an "ignorance" style defence can be finessed, depending on the nuances of the conversations that occurred leading up to the purported refusal. A conditional refusal, for example, may have implications, as would an unclear demand or failure of the officer to warn of the criminal consequences. I have successfully assisted hundreds of clients charged with impaired driving, DUI, over 80 - and refusing to provide a sample. Call me for a consultation.