Consequences of Refusing a Breathalyzer Demand or Breath Test in Ottawa

It surprises some people that a breath test refusal results in Ottawa drivers being treated as if they are guilty of DUI.

Drink-driving offences are handled with a zero-tolerance approach by the authorities here. If you’re suspected of drinking and driving, you’ll likely be asked to take a breath test.

A refusal to do so will result in a criminal charge and an immediate driver’s licence suspension—as well as other negative consequences that can impact you in the short and long term.

Understanding more about breath test refusal and its impact on your driving privileges and beyond can help you prepare for when you are stopped next time.

Consequences of Refusing a Breathalyzer Demand or Breath Test in Ottawa

What is a breathalyzer test?

A breathalyzer test, often simply called a “breath test”, is used by law enforcement in Ontario to test the blood alcohol concentration (BAC) of drivers.

Even without “reasonable suspicion” that an offence has been committed, drivers can be asked to blow into a screening device. You may be asked to do this if you were driving erratically, the police officer detects a smell of alcohol on your breath, you exhibit slurred speech or have bloodshot eyes or you admit to the officer that you were drinking earlier.

The roadside breathalyzer submits an initial reading of the alcohol content in your breath and can be used by the police to determine whether you should be arrested for impaired driving.

What happens to your licence if you refuse a breath test in Ottawa?

If you refuse a roadside breath test in Ottawa, the police cannot physically force you to do so. However, even if you are confident that you are under the legal limit, immediate sanctions will apply.

Breath test refusal will likely result in two types of penalties. Firstly, under the Highway Traffic Act, first offenders will face an immediate roadside 90-day administrative licence suspension and vehicle impoundment for a minimum of seven days.

You will generally not have a chance to talk to a lawyer before you decide to refuse to blow into the screening device at the roadside. If you do refuse, you should be able to consult a lawyer at the police station before providing the required chemical sample.

Breath test refusal is a criminal offence under Criminal Code section 320.15(1), so you will be charged with a crime. You could be convicted even if you were not actually impaired.

What happens after you’re convicted?

Since 2018, the penalties for breath test refusal are the same as for anyone convicted of driving over 80 or impaired driving.

Even first-time offenders will face a mandatory one-year licence suspension. This is actually a driving disqualification, which may be served concurrently with the administrative suspension already applied if the defendant pleads guilty early enough. Otherwise, the penalties are served consecutively.

To drive legally again, you will need to apply to have your licence reinstated and pay the associated fees—it does not happen automatically.

Breath test refusal also has consequences that extend far beyond the loss of your driver’s licence. If you refuse a breath test and are later convicted of impaired driving, your penalties will increase because the refusal is seen as an aggravating factor.

Other consequences of refusing a breath test

Usually, there is no jail time for first-time breath test refusals or DUIs but that changes if you have prior convictions or somebody is injured or killed as a result of your actions.

For a first DUI offence with no other aggravating circumstances, you will face the following sanctions in addition to the driver’s licence suspension:

  • A mandatory minimum fine of $1,000 plus other costs
  • Substantial charges associated with the mandatory alcohol and impaired driving counseling (i.e., the Back on Track remedial program)

This can amount to a significant sum in fees, even without a Victim Fine Surcharge (VFS), which may be applied in other impaired driving cases.

Repeat offenders can expect harsher penalties, including imprisonment for 30 days for a second offence and up to 120 days for a third offence, as well as longer driving prohibition terms. 

The longer-term consequences that result from a conviction include the following;

Criminal record

If you are convicted of refusing a breath test, you will have a lifelong criminal record—though you can apply for a record suspension five years after the sentence in most cases. This means that your breath test refusal will show up on background checks conducted by potential employers, landlords, insurance companies, and so on, for at least five years.

Insurance premiums

You can expect significantly more expensive insurance premiums after you resume driving following your suspension/disqualification. This could be the case even if you weren’t convicted of impaired driving.

Immigration and travel

The immigration status of non-Canadian citizens may be affected by the criminal record that results from the breath test refusal. Canadians may also encounter some problems when crossing borders into other countries.

Is it possible to drive under a licence suspension?

Ontario runs a Reduced Suspension program for drivers who qualify for the Ignition Interlock Conduct Review Program. This is the only way to legally drive under a license suspension or disqualification in Ottawa—and the privilege comes with many conditions attached.

Eligible drivers who are convicted of a first or second alcohol-impaired driving offence under the Criminal Code can reduce their licence suspension if they meet these conditions. The main requirement is to install an approved ignition interlock device in their vehicles.

The program may be eligible for first-time offenders who have already served 3-6 months of their driving suspension.

Possible defences for breath test refusal

It’s important to challenge your criminal charge and avoid the serious long-term consequences of a conviction for impaired driving.

Regardless of how clear-cut your breath test refusal case seems, you always have a defence because you are presumed innocent and we will defend that presumption with all techniques available to us.

Typically, we will build a defence around one of the following arguments, which will be personalized to your precise circumstances:

  • Questionable conduct of the arresting officer(s) during the stop, arrest, and charge process
  • Inaccurate equipment used by the arresting officer(s)
  • Inadequate training for the officer(s) on how to use and read the breathalyzer equipment
  • Showing the police didn’t have a legal right to demand the test
  • You were not capable of understanding the officer’s directions
  • Violation of your Charter rights
  • You were not informed of the consequences of refusing a breathalyzer test in Canada
  • You have a medical condition that prevents you from blowing into a breathalyzer

Breath test refusal lawyers in Ottawa

At David Anber’s Law Office, our lawyers have considerable experience in defending cases of impaired driving and related offences. Our experienced defence lawyers can help if you refused a breath test in Ottawa and are now facing the legal consequences for doing so.

To schedule a free consultation to speak with one of our experienced breath test refusal lawyers, call us toll-free at 1-888­­-989­­-3946 or contact us online.