Reviewed by the DUI Lawyer Toronto defence teamUpdated
You have been charged with a breath test refusal in Toronto, and now you have to deal with two penalty systems at once: one federal, the other provincial.
Being stopped by police and asked to blow into a breath testing device can be stressful. Refusing that request, however, can lead to a criminal charge that carries at least the same weight as a drunk driving conviction. If you have been charged with refusal to provide a breath sample under s. 320.15 of the Criminal Code, understanding your legal situation is the first step toward protecting your future.
Why a Refusal Charge Is Treated So Seriously
The law treats refusal as seriously as a high breath reading, in part because a refusal leaves police without the evidence a lawful demand entitled them to collect. That is why the minimum fine for a first refusal conviction, $2,000, is double the standard minimum for a first over 80 conviction. Repeat refusals carry the same mandatory jail minimums as any other impaired driving offence.
What Does "Refusal to Provide a Breath Sample" Mean?
Under s. 320.15(1) of the Criminal Code, it is a standalone criminal offence to fail or refuse, without a reasonable excuse, to comply with a lawful demand. The demand can be for a breath sample, a blood sample, an oral fluid sample or a drug recognition evaluation. This is not a traffic ticket or a provincial offence. It is a crime that can result in a criminal record, jail and a significant driving prohibition.
Many drivers mistakenly believe they can refuse if they have not been drinking. They cannot. "I haven't had anything to drink" is not a defence to a refusal charge. Once an officer makes a lawful demand, you must comply or face criminal consequences.
A common misconception is that refusal means explicitly saying "no". In reality, the law captures a much broader range of conduct. You can be charged for ignoring the officer's instructions, being intentionally uncooperative, or pretending to blow without providing an adequate sample. Courts often describe that last situation as "failing to provide" rather than an outright refusal, but the legal consequences are the same.
The same offence applies to drug demands, so refusing an oral fluid test or a drug evaluation can lead to the same charge. Our page on drug-impaired driving covers how those investigations work, and our article on how police test drivers for cannabis explains the oral fluid screen.
How Police Demand a Breath Sample in Toronto
Impaired driving investigations usually involve roadside screening, followed in some cases by formal testing at a police station. The law draws important distinctions between these stages.
The Roadside Demand
At the roadside, an officer uses an approved screening device (ASD) to check for alcohol. Under mandatory alcohol screening in s. 320.27(2), an officer who has an ASD may demand a sample from any driver who has been lawfully stopped, without needing to suspect that you have been drinking. Many of these demands happen at RIDE check stops, which are common in the evenings, on weekends and during the holiday season. Our post on what happens at a RIDE checkpoint explains what to expect.
The Station Demand
If the roadside test is a fail, or the officer otherwise has reasonable grounds, police can arrest you and take you to a station. There, under s. 320.28, the officer can demand samples into an approved instrument, the Intoxilyzer 8000C, which produces the evidentiary readings used in court. A refusal can happen at either stage.
Your Rights and Obligations
At the roadside, your obligations are clear. When stopped, you must provide your driver's licence, vehicle ownership and insurance documents. If a lawful roadside demand is made for a breath sample, you must comply. Refusing at that moment can immediately lead to arrest for refusal under s. 320.15.
Here is where many drivers get confused about their rights. At the roadside, before arrest, there is no right to consult a DUI lawyer in Toronto before providing a roadside sample. Courts have upheld this limit because roadside screening is designed to be quick and because alcohol levels change over time. Similarly, you cannot refuse a Standardized Field Sobriety Test on the basis that you want legal advice first. After arrest, however, you have the right to counsel without delay under s. 10(b) of the Charter, and police must give you a real opportunity to exercise it before station testing.
Breath Test Refusal Penalties in Ontario
Federal and Ontario law punish refusing to provide a breath sample at least as seriously as a regular DUI, and Toronto courts apply the same minimums.
| Consequence | First offence | Second offence | Third or subsequent |
|---|---|---|---|
| Mandatory minimum | $2,000 fine | 30 days jail | 120 days jail |
| Criminal driving prohibition | 1 to 3 years | 2 to 10 years | At least 3 years |
| Maximum sentence, no injury | 10 years (indictment) | 10 years (indictment) | 10 years (indictment) |
| Criminal record | Yes | Yes | Yes |
| Ontario suspension on conviction | 1 year | 3 years | Lifetime, may be reduced after 10 years |
| Back on Track and ignition interlock | Required | Required | Required |
On summary conviction, the maximum is 2 years less a day. Immediate provincial penalties at the time of the charge include a 90-day Administrative Driver's Licence Suspension, a 7-day vehicle impoundment at your expense and an administrative monetary penalty, plus a reinstatement fee. These start right away and run separately from the criminal case. Our article on the 90-day ADLS explains that process, and Ontario's page on impaired driving outlines the provincial side.
A conviction also creates a criminal record. You can seek a record suspension only after a waiting period that starts once the sentence is complete. For permanent residents and foreign nationals, a refusal conviction can lead to inadmissibility or removal, and it can complicate travel to the United States.
The Process From Charge to Trial
Refusal charges in the GTA generally go to the Ontario Court of Justice. The case moves through a first appearance and disclosure, a detailed review of the evidence, a Crown pretrial and a judicial pretrial, and then either a resolution or a trial. For refusal cases, the video from the roadside, cruiser and breath room is often the most important piece of disclosure, because it shows exactly what was said and done.
Under R. v. Jordan, 2016 SCC 27, cases in the Ontario Court of Justice should generally be completed within 18 months. Unreasonable delay not caused by the defence can lead to a stay.
Common Defences to a Refusal Charge
Every refusal case depends on its facts. The main questions we examine include:
- Was the demand lawful? A roadside demand requires a lawful stop, and a station demand requires reasonable grounds. If the demand was not lawful, there may be no offence.
- Was there actually a refusal? Hesitation, confusion or questions are not always a refusal. The Crown must prove that you failed or refused to comply.
- Did you understand the demand? Language barriers, injury or shock can affect whether a demand was properly understood.
- Was there a reasonable excuse? A genuine medical or physical inability to provide a sample may amount to a reasonable excuse.
- Were your Charter rights respected? Breaches of s. 8, s. 9 or s. 10(b) may lead to evidence being excluded under s. 24(2), applying R. v. Grant, 2009 SCC 32.
- Did the instrument work properly? In failure-to-provide cases, records for the ASD or Intoxilyzer 8000C may show a device problem rather than a lack of effort. Our explainer on how breathalyzers measure alcohol describes what those devices actually record.
Police often lay a refusal charge alongside an impaired driving charge, and each needs its own defence. The lawfulness of the demand decides many of these cases. In one Toronto file the court found the roadside demand itself unlawful; read how an unlawful roadside demand led to a dismissal.
What to Do Right Now After a Refusal Charge
- Write down exactly what happened: what the officer said, what you said, and whether you understood the demand.
- Record any medical issues that may have affected your ability to provide a sample.
- Keep your paperwork and do not drive during the 90-day suspension.
- Stay silent about the case online and with anyone except your lawyer.
- Get legal advice promptly so that video and device records can be requested early.
Our post on whether you can refuse a breathalyzer in Ontario answers common questions in more detail. If York or Halton police stopped you, see our pages on refusal charges in Richmond Hill and impaired driving defence in Oakville. Toronto Police Service lays many refusal charges in the east end, and our Scarborough impaired driving defence page covers them. North of the GTA, our page for drivers charged in Barrie explains Highway 400 stops and the Barrie courthouse.
Breath Test Refusal: frequently asked questions
Can you refuse a breathalyzer in Ontario?
You can physically decline, but refusing a lawful demand without a reasonable excuse is a criminal offence under section 320.15 of the Criminal Code. A refusal conviction carries a mandatory minimum fine of $2,000 on a first offence, a driving prohibition and a criminal record. At the roadside you also face an immediate 90-day licence suspension and a 7-day vehicle impoundment, even before any court date.
What counts as a refusal to provide a breath sample?
A refusal is not limited to saying no. Police can lay the charge if you ignore instructions, delay without reason, or appear to blow without providing a suitable sample. That last situation is usually called failing to provide a sample, but the consequences are the same. Whether your conduct was truly a refusal, and whether you understood the demand, are often central questions at trial.
Is refusing a breath test worse than failing it?
In several ways, yes. The minimum fine for a first refusal conviction is $2,000, which matches the minimum for the highest blood alcohol readings and is double the standard $1,000 minimum for a first over 80 conviction. Jail minimums for repeat offences and the driving prohibitions are the same. A refusal also gives the Crown no breath reading to test, so the case turns on the demand and your response.
Do I have the right to call a lawyer before a roadside breath test?
Generally, no. Courts have accepted that roadside screening is meant to be quick, so there is no right to consult a lawyer before providing a roadside sample into an approved screening device. The right to counsel without delay under section 10(b) of the Charter applies after arrest, before the station tests on the Intoxilyzer. If police did not respect that right, evidence may be excluded.
What is a reasonable excuse for refusing a breath test?
The Criminal Code allows a defence where a person had a reasonable excuse for not complying with a demand. Whether an excuse is reasonable depends on the facts, such as a genuine medical or physical inability to provide a sample. Simply believing you were sober, or wanting to speak to a lawyer first at the roadside, is not enough. The strength of any excuse needs careful review of the evidence.
