Refusing a breathalyzer test is a decision that can have significant consequences for drivers charged with impaired driving and DUI offences.

You do the right to refuse a breathalyzer test when stopped by the police, but.  While this is technically true, it’s important to understand the consequences of such refusal.

Under Criminal Code of Canada. where a driver refuses to provide a breath sample upon demand to a police officer, the police can charge the driver with refusing a breathalyzer test.

While some drivers may feel refusing the breathalyzer test will help their case, it rarely does. Where the police have the lawful authority to demand a breathalyzer test from a driver, the driver must comply.

Our team of DUI lawyers provide winning representation and defence for refuse breath test charges, and we can help you.  Call us at 647-930-0200 speak to our lawyers, and let’s just discuss your case.

When considering whether or not to refuse a breathalyzer, it’s usually better to provide a sample of breath because:

• the driver may pass the test
• breath tests give another issue to dispute
• low breathalyzer readings maybe eligible for reduced charges

Refusing a Breathalyzer Test

Where a driver refuses to take the breath test, the defence will deal with the issues of:

• did the accused have a lawful reason to refuse
• did the police have the grounds to demand a breathalyzer test and
• did the accused fail without lawful authority to provide the breath test to the officer
• did the accused understand the implications of refusing the test

Under the Criminal Code of Canada, it is an offence not to comply with a demand for a breath sample upon request by a police officer.

A driver has the right to refuse a breathalyzer test and cannot be physically forced to submit to one. However, if the driver refuses, they can be charged with the criminal offence of “Refusing a Breathalyzer Test.” The penalty for refusing the test is the same as if the driver had taken the test and failed.

Refusing a breathalyzer test in Ontario carries the same penalties as if the driver took the test and failed.

Where a driver is convicted in court or pleads guilty to refusing a breathalyzer test they are liable for the following penalties:

• Criminal record: Drivers convicted of refusing a breathalyzer test are considered criminals in Canadian law and receive a criminal record for life.  Criminal records affect your ability to travel, employment opportunities, immigration & citizenship and even applications to higher education.

• Fines: First time offenders upon conviction usually receive a fine in the area of $1000 which can be increased depending upon the circumstances of the case.

• Licence Suspensions: Drivers receive a one-year licence suspension the first time they are convicted of a DUI charge. Second offence, the drivers licence will be prohibited for three years. Third offence a lifetime prohibition with the possibility of reinstatement after 10 years. Fourth time offenders convicted of are prohibited from driving for life with no possibility of reinstatement.

• Mandatory Alcohol Testing: Persons convicted of alcohol or other drug-related crimes are required to participate in treatment for their substance abuse problems.

• Mandatory Interlock Device: To continue driving after your licence is reinstated, you must have an ignition interlock device installed inside your vehicle. The device is an in-car alcohol breath screening device with the ability to prevent the engine from starting if it detects alcohol in your system.

• Mandatory Back on Track program: the Highway Traffic Act requires convicted impaired drivers or drivers with 2 or more administrative suspensions to successfully complete Back on Track, Ontario’s Remedial Measures Program, before their licence can be reinstated. Participants must pay a fee of approx $894.

• Insurance Rates: Drivers convicted of refusing a breath test will see insurance rates increase dramatically.  Insurance companies believe that drivers convicted of drinking and driving charges present a higher risk of being in an accident.

Refusing a breathalyzer test in Ontario carries severe penalties.  These penalties can have long term effects on your life, family and livelihood.

Where a police officer has reasonable grounds to believe that a person operating a motor vehicle has within the previous three (3) hours,

• committed an offence under section 320.14 (impaired driving) of the Criminal Code,
• the peace officer may, make a demand,
• requiring the person to provide, as soon as practicable,
• breath samples that, in a qualified technicians opinion, will enable a proper analysis to be made to determine the concentration of alcohol in the person’s blood.

Everyone commits the offence of refusing a breathalyzer test who, without reasonable excuse, fails or refuses a demand made under section 320.15.1  of the Criminal Code of Canada.

★★★★★  Excellent lawyer!!! Nicholas was a pleasure to deal with. He knows the DUI laws inside and out. Not only did he get my impaired driving and refuse breath test dropped but he cleared my name from the police database. I wouldn’t hesitate referring him to my friends and family if any of them were to be charged with DUI or related matters. Jacob C.  Toronto (Google Reviews)

The police must have the lawful authority or grounds to demand a breathalyzer test. A police officer may make a demand that the driver provide samples of their breath (Breathalyzer Demand) when:

• observes the driver operating a motor vehicle, or
  • believes the driver had the care and control of a motor vehicle, and
• the officer has grounds to believe that the driver has consumed alcohol

When requested to supply a sample of breath for a breathalyzer, the driver must comply with the officers demand.

It is a criminal offence to refuse a breathalyzer test lawfully demanded by a police officer.

The lawyer will answer your questions, and review any documents the police gave you. We can give you an opinion about your case, and explain the DUI defences and legal arguments that may be available to you. We’ll also discuss what you can do to help your cause, and provide you with an estimate of the cost to defend the accusation.

If you decide to retain our services, we’ll invite you to meet with us in person or have an online meeting via Facetime or Zoom. During this meeting, we’ll discuss your case in detail, plan your defence, and arrange for the first court date.

We ask for a reasonable deposit of 10 to 25 percent when you retain our services. The first step is to just call and have a discussion…

Q. Is refusing a breathalyzer in Ontario a criminal offence?

A. Yes. In Ontario, refusing a breathalyzer (or refusing to provide a breath sample after a lawful demand) is a Criminal Code offence often called “refusal” or “failure/refusal to comply.” It is treated very seriously, and in many cases the penalties can be similar to an impaired driving charge. The key issue is whether the police demand was lawful and whether you actually refused, which is why the facts and timing matter.

Q. What penalties can I face for refusing a breathalyzer in Ontario?

A. A refusal charge can trigger major consequences that can impact your record, your licence, and your future. Depending on the situation and your history, this may include a criminal record, significant fines, driving prohibitions, and other court-imposed outcomes. Because the penalties can be severe and long-lasting, it’s important to get legal information quickly and have the evidence reviewed carefully.

Q. What counts as “refusing” a breathalyzer test?

A. “Refusing” is not always just saying “no.” It can include conduct that police interpret as non-compliance, such as not providing an adequate sample when required, delaying without a valid reason, repeatedly failing to follow instructions, or refusing to go along with the testing process. These cases often turn on small details, so the exact words used, the timeline, and what officers recorded can make a major difference.

Q. Can a refusal charge be beaten in court?

A. It can be defendable, depending on the evidence. Common legal issues include whether the demand was made properly, whether the required legal steps were followed, whether you were given a real opportunity to comply, and whether there were communication, medical, or timing problems that affected what happened. A strong defence usually starts with a detailed review of disclosure, including officer notes, body-worn video (if any), and the demand wording and timing.

Q. What should I do if I’m charged with refusing a breathalyzer in Ontario?

A. Act quickly and get legal information from a qualified Ontario criminal defence professional, because early steps can protect your options. Keep notes of what happened while it’s fresh (times, locations, what was said, and who was present), and gather any documents you received. Then have the case assessed based on the actual evidence, because refusal cases are often won or lost on the details.