Can I decline a breathalyzer test?
In the practice of criminal law, a lawyer can often expect to receive his or her fair share of 2 a.m. phone calls. While the breadth of these twilight inquiries is truly only limited by the depth of one's imagination, there is one question that many lawyers seem to get more frequently than others: “Should I provide a breathalyzer sample?"
There is no one-size-fits-all answer to this question. It all depends on the specific circumstances of your case. More often than not, you would be well advised to provide a breath sample when one is requested by police. This is not an unwavering rule, however, and you should always seek the advice of a lawyer if you ever find yourself in this difficult situation.
It is important to note that there are two different kinds of breath tests in Canada. The first is a roadside-screening test, which is designed to detect the presence of alcohol in your blood. A roadside screening test may ordinarily be administered without first providing you with an opportunity to speak to a lawyer. The second, more accurate test, the breathalyzer, is designed to detect the concentration of alcohol in your blood. You should always be provided with an opportunity to consult a lawyer before taking a breathalyzer test.
In Canada, and for good reason, it is an offence to operate a motor vehicle (including a boat, motorcycle or snowmobile) with a blood-alcohol content over 80 milligrams of alcohol in 100 millilitres of blood (or “over 80”). When faced with a request for a breath sample, many people experience feelings of doubt or anxiety as to whether or not they should provide one. Some might feel compelled to decline because they think they will blow well over the limit; some might do so because they fear the equipment will not take an accurate reading; and some still might decline because they feel the officer is not justified in making the request. Whatever your reservations, you should know that it is also an offence in Canada to, without a reasonable excuse, fail or refuse to comply with a police officer’s lawful request for a breath sample. You’ll often hear this referred to as a “refusal”.
Many people don't realize that they may have fewer defenses available to them in the case of a “refusal” than they would for an “over 80” charge. In the case of the over 80, you may challenge the functionality of the breathalyzer equipment, its operation by police, or the accuracy of the test results. In the case of a refusal, you have lost those opportunities. Whether or not you would have blown over 80 is irrelevant; all that must be proven is that you either failed or refused to provide a sample, which was lawfully requested. In other words, “refusing to blow” may deprive you of certain defenses which might otherwise have been available to you had you provided the sample reasonably requested of you by the police. The range of penalties which may be imposed under the Criminal Code for a refusal charge is the same as the range of penalties which may be imposed for an over 80 charge.
There are, however, some distinctions between the two types of charges in certain circumstances. For example, a “curative discharge” may be an available sentencing option for those who are diagnosed as alcoholics in need of medical treatment. This discharge is ordered in place of a criminal conviction and, rather than serving jail time, an accused is directed to seek the required treatment. Curative discharges are provided only in the rarest of circumstances and, while they may be considered for an over 80 charge, they are not available to those convicted of refusing to blow.
The law of impaired driving in Canada is further mired in complexities and nuances that are best left to be navigated by experienced legal counsel. Often, the best decision you will make, should you find yourself in this situation, is to seek out the advice of a qualified legal professional and follow it.