Driving Offences

Is Failing to Provide a Breath Sample Always a Crime?

Written on behalf of Barrison Law

Impaired driving is a relatively common offence but can greatly impact a person’s life. The consequences of an impaired driving conviction may potentially affect a person’s ability to work and undertake caring commitments, among other things. Therefore, the evidence used to convict an individual of an offence must be accurate and obtained according to the law. Police can obtain evidence, for example through a breath test, in certain circumstances. However, failure to comply with such requests may also be a crime. 

This blog post briefly examines the law for testing drivers for alcohol and drugs. It also looks at a recent decision of the Ontario Superior Court of Justice in which the accused was charged with refusing to undergo a breath test after initially refusing the test but then agreeing to it.


Police can test drivers for the presence of alcohol or drugs in certain circumstances

Section 320.27 of the Criminal Code contains two of the mechanisms by which police can test for the presence of drugs or alcohol in drivers – one requires reasonable suspicion; the other does not. 

Under section 320.27(1), a police officer can administer certain tests if they have reasonable grounds to suspect that a person has taken alcohol or drugs and has operated a vehicle within the preceding three hours. The officer can require the person to immediately perform prescribed physical coordination tests and/or immediately provide a breath sample (alcohol) or a bodily substance sample (drug). 

Section 320.27(2) allows for “mandatory alcohol screening.” This allows police officers with approved screening devices (ASD) to require a person operating a motor vehicle, that has been lawfully stopped, to provide a breath sample immediately. The officer does not need to suspect that the driver has consumed alcohol.


Approved screening devices facilitate further investigations

Drivers pass an ASD test if it produces a result of fewer than 50 milligrams of alcohol in 100 millilitres of blood. Ontario drivers register a warning if the test shows between 50 and 80 milligrams of alcohol in 100 millilitres, which results in an immediate temporary suspension of their licence under the province’s Highway Traffic Act.

However, if the ASD test indicates a blood alcohol level of more than 80 milligrams of alcohol in 100 millilitres, the driver will be detained and investigated for driving offences under the Criminal Code.


Failing or refusing to provide a sample is an offence

According to section 320.15(1) of the Criminal Code, it is an offence for a person to fail or refuse to comply with a demand for testing for the presence of alcohol or drugs, such as through the above mechanisms, unless they have a reasonable excuse. 


Accused initially refused to undergo an ASD test, but later agreed

Turning to the recent decision in the case of R. v Khandakar, the accused was charged with failing to comply with section 320.15(1).

A police officer saw the accused leaving a bar and stopped his vehicle at 1:20 am. The officer repeatedly requested that the accused blow into an ASD. He refused, expressing his concern about the instrument’s accuracy and desire to be arrested and taken to a police station. The officer arrested him at 1:40 am for refusing to provide a breath sample. 

The accused was erroneously under the impression that his arrest would result in a trip to the police station. Instead, about ten minutes after his arrest, he realized that he would instead be released at the roadside and not tested at a police station. At this point, he offered to submit to an ASD test but the officer said it was too late.


Trial judge decided that the accused’s offer effectively cancelled the prior refusal

The trial judge examined the previous case authorities which showed that a refusal to provide a breath sample may not necessarily be considered final if the driver later agrees to the test. The judge said that if the offer is part of the same transaction as the refusal, it might effectively cancel the initial refusal. In these cases, it is necessary to consider all the circumstances, including the manner of the refusal, the time between refusing and agreeing, and the availability of the device.

The trial judge thought it was a “close case” but acquitted the accused. In arriving at this decision, the judge noted that the accused’s change of mind was due to his ill-informed opinion, only ten minutes elapsed between the last refusal and his offer, and the officer still had the ASD and could still have obtained a sample which could have been relied upon.


Superior Court agreed, maintaining the acquittal

The Superior Court rejected the Crown’s appeal. Even though the sample needs to be given “immediately” under section 320.27 of the Criminal Code, it said:

“This recognition that the period of immediacy has a degree of flexibility, albeit limited, is necessary to accommodate the practical realities of obtaining an accurate ASD sample from drivers due to considerations such as the potential presence of mouth alcohol. It also leaves room for some time to pass during which a law-abiding motorist, unexpectedly stopped by the police and faced with an ASD demand in circumstances where they have no access to legal advice concerning their legal obligations, has an opportunity to determine whether they will comply.”

The Superior Court decided that the trial judge, in determining whether the refusal and offer were part of the same transaction, made findings that were supported by the evidence. 


Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Impaired Driving Defence

If you have been charged with impaired driving or refusing to give a sample, you need a strategic defence to have the best chance of minimizing the adverse consequences. The criminal defence lawyers at Barrison Law are experienced in dealing with various driving charges, including impaired driving and dangerous driving. Our lawyers work closely with our clients to understand their unique circumstances and needs. 

Barrison Law provides a free initial consultation for potential clients. We also offer a 24-hour emergency phone service if you urgently require our assistance. To speak with a member of our team, please call us at 905-404-1947 or contact us online.