Area of Law: Criminal Law
Answer # 775
Refusing to provide a breath, blood or urine sample, or undergo a SFST or DRERegion: Ontario Answer # 775
Refusing to provide sample or perform sobriety test
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 avoid becoming hostile 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. Also, there is a new mandatory breath test.
If a driver refuses to provide a breath or bodily fluid sample, or perform a sobriety test, 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 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.
What type of tests and samples can police ask for?
You do not have the right to consult a lawyer before performing a roadside test. The police will make a judgment about your ability to drive safely based on a number of observations, tests, and samples, including:
- your appearance,
- your answers to questions,
- your physical movement, and
- whether you or your car smell of alcohol;
- a breath-screening test for alcohol,
- the Standardized Field Sobriety Test (SFST) – which can include examining the eyes of drivers, as well as putting drivers through a series of physical tests, and
- an oral fluid (saliva) sample to test for drug impairment.
Mandatory roadside breath test: Under recent changes to the Criminal Code, police officers no longer need to suspect a person of impaired driving in order to demand a breath test. They can now conduct random mandatory roadside breath tests to screen for alcohol impairment. This means that drivers who are stopped for any other reason, such as a traffic violation, or a check stop, may be required to provide a breath test.
If you are arrested and taken to the police station or medical facility for further testing, you do have the right to have a lawyer present. Further testing may include:
- evidence from roadside tests
- evidentiary breath-screening test
- bodily fluid sample testing
- Drug Recognition Evaluation (DRE)
Penalties under the Canadian 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 impairment conviction.
The minimum penalties are:
- for a first offence, a fine of $2,000, s. 320.19 (4)
- for a second offence, imprisonment for a term of 30 days, and
- for each subsequent offence, imprisonment for a term of 120 days.
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).
In addition, the driver will have a criminal record.
Penalties under the 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
- $550 administrative penalty
- $275 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)
If you were at fault for an automobile accident while you were impaired, your automobile insurance policy will not cover damage to your vehicle and you may not be eligible to receive certain other benefits, such as income replacement benefits.
Refusing to provide a sample is a serious offence. If you have been charged with any criminal offence, contact our preferred criminal law experts:
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