Under the law, the police have the right to stop vehicles and ask drivers if they have consumed alcohol or drugs. Although you are not required to answer such questions, it is generally best to cooperate with the police. You are required to provide the police with your driver’s licence, car ownership, and insurance papers. If the police suspect impairment, they are authorized to perform sobriety tests and ask for bodily fluid samples.

Mandatory roadside breath test: Police officers do not need to suspect a person of impaired driving in order to demand a breath test. They can legally conduct random mandatory roadside breath tests to screen for alcohol impairment. This means that drivers who are stopped for any other reason under provincial highway traffic law, such as a traffic violation, or at a check stop, may be required to provide a breath test.

However, to demand an oral fluid sample, police must have a reasonable suspicion that the driver has drugs in their body, for instance because the driver has red eyes or muscle tremors or appears agitated.

Can you legally refuse to take a roadside test?

Drivers do not have the legal right to refuse roadside testing (except in limited circumstances) and they do not have the right to speak with a lawyer before testing is done at a roadside stop. If a driver fails or refuses to take a roadside test, the police may arrest the driver and take them to a police station or medical facility for further testing, where they do have the right to speak with a lawyer first.

If a driver fails or refuses to perform a sobriety test, or provide a breath or bodily fluid sample, he or she may be charged with the offence of failure or refusal to comply with demand under section 320.15 of the Criminal Code. If you have been charged with a criminal driving offence such as impaired driving or refusing to comply with demand, it is important to hire an experienced criminal defence lawyer as soon as possible.

If you have an injury or illness that prevents you from performing a test, such as not having enough air to blow into the breath machine, you may have a valid excuse for refusing a breath test.

Penalties under the Criminal Code, s. 320.19 (1), (4)

Under the Criminal Code, penalties for a conviction of failure or refusal to comply with demand are the same as penalties for an impaired driving conviction:

• for a first offence, a fine of $1,000,
• for a second offence, imprisonment for a term of 30 days, and
• for each subsequent offence, imprisonment for a term of 120 days.

These impaired offences are hybrid offences, and if convicted the driver may also face:

• a jail term of not more than two years less a day if the offence is punishable on summary conviction (less serious), or
• imprisonment for a term of up-to 10 years, if the Crown prosecutor decides to proceed by indictment (more serious).

Mandatory licence suspension:

• first offence: minimum 1-3 year licence suspension
• second offence: minimum 2-10 year licence suspension
• third or subsequent offence: 3 year-lifetime licence suspension

In addition, the driver will have a criminal record.

Penalties under the Ontario Highway Traffic Act

If you refuse to take a drug or alcohol test, or if you are convicted under the Criminal Code for refusing to provide a sample, then you will also face the following penalties under the Highway Traffic Act:

• automatic licence suspension for 90 days
• an administrative penalty
• a licence reinstatement fee
• your vehicle will be impounded for seven days

You must also:

• attend a mandatory education or treatment program (for second and subsequent occurrences within 10 years)
• use an ignition interlock device for at least 6 months (for third and subsequent occurrences within 10 years)

Being charged with any impaired driving offence can have serious legal consequences for drivers. In many jurisdictions, a driver’s BAC level at the time of arrest can result in immediate suspension of their driver’s license, even before they are convicted of a crime. If a driver is convicted of an impaired driving offence, they may face fines, jail time, or mandatory enrolment in a drug or alcohol treatment program. Repeat offenders may face even harsher penalties, including longer jail sentences and permanent loss of their driver’s license.

Get help

To erase your criminal record, call toll-free 1-888-808-3628 or learn more at Pardon Partners. It’s easier than you think.

If you have been charged with a driving offence, it is important to hire an experienced criminal defence lawyer as soon as possible. Contact our preferred criminal defence expert, Calvin Barry Criminal Lawyers for a free consultation at 416-938-5858 .

								
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