In Canada, it is a criminal offence to intentionally fail to provide a breath sample under section 254 of the Criminal Code. If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has consumed alcohol and therefore is driving while impaired, the police officer may demand as soon as practicable; i) samples of breath that, in a qualified technicians opinion, will enable a proper analysis of the concentration of alcohol in the blood, or; ii) if the officer reasonably believes that the individual is unable to give a breath sample, to provide a sample of the person’s blood for a blood-alcohol level analysis.
Steps in Determining if a Lawful Demand was Made When an individual is charged with failing to provide a breath sample, it is critical for defence counsel to determine whether the officer made a lawful demand for a breath sample. Each case is specific and depends on independent facts. If an officer, for example, stopped an individual for a different purpose and did not believe on the initial stop that the accused had alcohol in their system at the time, the officer would not be permitted to demand a breath sample. Although it is case specific, an argument could be made that any samples taken should be ignored and rejected by the court as being illegally obtained.
Lawful Reasons for Failing to Provide a Breath Sample
There are multiple grounds for failing to provide a breath sample that are all fact specific.
Medical Grounds: This involves a form of danger to the accused. If a person has respiratory problems, or other health related problems, they may be exempt from providing a breath sample. This does not negate the fact that a peace office may demand a blood sample.
Mental Grounds: This relates to individuals that may be mentally incapable of providing asample due to their state of intoxication or other mental grounds that may affect the denial of abreath sample.
Denial or right to consult: An individual may ask to speak with counsel before providing a breath sample.
No reasonable grounds: If the officer has no reasonable grounds for demanding a breath sample, an individual has no requirement to provide a breath sample.
Breathalyzer machine not working: If the suspected person attempts to provide a breath sample and the machine is not working and unable to provide an accurate.
Penalties for Failing to Provide a Breath Sample
Like all impaired driving charges in Canada, a conviction for failing to provide a breath sample includes a minimum of a $1000 fine and a mandatory license suspension for 12 months for a first time offender. A finding of guilt will also result in a criminal conviction and a criminal record.
At Smordin Law we handle all the charges filed on you and help you to be freed from all convictions. If you find yourself in need on any judicial assistance, do not hesitate to enlist the services of the experts at Smordin Law.