Section 320.15 (1) of the Criminal Code of Canada: Failure or refusal to provide a breath sample impaired driving charges.

In Canada the police have a right to demand that an accused provide a breath sample to determine what their blood alcohol level is in impaired driving cases. This can be at the roadside into an approved screening device (ASD) or at the police station into an intoxilyzer machine. In most Ontario cases the accused’s failure or refusal to provide a breath sample will be recorded via bodycam, in car cameras, and CCTV at the station. Most people charged with failure to comply/refusal will also be charged with operation while impaired under Section 320.14(1)(a) of the Criminal Code.

Why do the police charge for both impaired driving/operation and refusal?

Police will normally charge for as many offences as possible as it is their job to provide the evidence to the court to determine guilt or innocence. An accused may be found guilty for refusal but not impaired operation or vice versa. It is a crime to drive while impaired (via alcohol or drugs) but also to refuse or fail to provide a breath sample. If the accused chose to blow, or properly blow, and they blew over 80 they would also be charged with two offences: impaired driving and over 80.

In refusal cases the two charges are normally impaired operation and failure/refusal to blow. The officer in charge (OIC) of the case is trained to charge for both offences because sometimes the accused’s lawyer can win an acquittal on one but not the other. An accused should not be found guilty of two offences based on the exact same set of facts anyway so it does not matter. From their perspective it makes more sense to charge for both because one of them may stick.

It is a crime in Canada to refuse or fail to blow properly into the breath testing machine.

Many accused, who may or may not be sober at the time, will make the mistake of thinking that they have a right to refuse to blow properly into the machine. Sometimes they ask to speak to their lawyer of choice who was not available at the time and think that means they are not legally obligated to blow. After all, in Canada, everyone has a right to remain silent and not incriminate themselves.

While some may think it is logical that no accused should ever be forced to ‘open their mouths’, this does not apply when a demand is legally made by the police to provide a breath sample during an impaired driving investigation.

Failure or refusal to comply with demand to provide a sample of breath under Section 320.15 (1) is a very serious criminal offence (just as serious as impaired operation of a motor vehicle).

While it is physically impossible to force an accused to blow into a machine, under the Criminal Code it is an offence if legally demanded to do so by the police. This does not mean that the charges will not be defendable though when the case goes to court. Sometimes failure/refusal charges can be withdrawn (dropped) or the accused will be found not guilty at trial. There are many technical and procedural ways that the police can make mistakes in their investigation and arrest. Sometimes the accused’s rights have been violated under the Charter of Rights and Freedoms.

In other cases the accused may not have been physically able to properly blow into the machine and their alleged “intoxicated” or “impaired” behaviour may be logically explained in a legal way. Even if the person was driving drunk and refuses to blow this does not necessarily mean they will be found guilty by the court. Many accused feel that just because their actions were recorded on video that they will be found guilty. This is not the case at all. There is always video evidence in DUI cases and often it is used by their defence lawyer to exonerate the accused at trial or convince the Crown Attorney to drop the charges.

Just because you have a foggy memory, blacked out, or were recorded on video does not mean the DUI/refusal charges are not able to be successfully defended.

While it will take some time to get all of the disclosure (evidence) it must be provided to the defence lawyer and can be used to help win your case while many people charged assume otherwise. DUI related charges, such as fail to provide and/or refuse to provide a breath sample (s. 320.15 (1)) are some of the most contested cases in Ontario courts because any finding of guilt will result in a criminal record by law.

They are also often contested because they may be winnable even when the accused believes they are destined to be found guilty. It is the job of the accused's criminal lawyer to find problems with the police work/case and present it to the Crown Attorney and the court.


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Are you a lawyer? If you are defending an impaired driving related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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