Failure to Provide a Breath Sample

Similar to a refusal charge, failing to provide a breath sample is a separate offence from impaired driving, and you can be convicted of both impaired driving and failing to provide a breath sample.

If you beat the impaired charge you can still be convicted of failing to provide a breath sample; the prosecution won't simply "drop" the failure to provide charge if you are found not guilty of the impaired. Understanding how to approach (and beat!) both charges is critical to a successful defence.

The Law

The question is not whether you were impaired or over the legal limit.

Whether impaired or not has little relevance to whether you failed to provide a breath sample. The concern for the courts is whether a lawful demand was made upon you, and whether you failed to provide a sample or not.

Whether a demand is lawful involves a close examination of the reasons for detention and the time requirements detailed in the Criminal Code of Canada. If there are insufficient reasons to demand a breath sample, or if the timing requirements are not followed, then the demand was not lawful. If the demand made was not lawful, then you do not commit an offence in not complying with it!

A failure to provide a breath sample can be justified if there is a reasonable or lawful excuse. Excuses can include medical reasons, such as an inability to provide a sample, treatment by the police, or an interference with protected rights under the Charter of Rights and Freedoms.

Another approach involves applying to exclude from evidence any actions or words of refusal. This can result if a violation of your Charter rights is proven. For example, if your right to contact a lawyer was improperly given or interfered with, then evidence of your failure could be excluded. No evidence, no conviction! These applications are technical and difficult to make, but having the proper experience can be the difference between success and failure.

What It Means For You

A charge will result in an immediate licence suspension. An appeal of this suspension is restricted to 30 days.

A conviction means a minimum punishment of a $1000 fine and a 1 year driving suspension. Prior convictions will increase the punishment, and usually involve a jail sentence.

Other potential consequences include:

  • loss of employment, restriction on future employment;
  • restriction on the ability to travel;
  • increased insurance premiums;
  • required interlock participation;
  • mandatory driver education programs;
  • longer provincial licence suspensions;
  • Criminal Record;

The consequences for a charge or conviction go beyond what happens in court. Make sure you understand all consequences and are in a position to make an informed decision on how to proceed.

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