The breathalyzer is a common device used to detect alcohol in the bloodstream. It’s impossible to know your blood alcohol content (BAC) without being tested. Everyone reacts differently to alcohol, and tolerance levels vary; therefore, it’s difficult to judge how many alcoholic beverages will affect your ability to drive. Driving under the influence of drugs or alcohol (DUI) is one of the most common criminal offences across Canada. You can be pulled over by law enforcement at any time if impaired driving is suspected, and you will likely be asked to provide a breath sample.
It’s important to know your rights when dealing with police officers during a traffic stop. Facing a DUI charge can be incredibly stressful. You should remain polite and courteous with your officer while not admitting guilt. But should you refuse a breathalyzer? What are the consequences if you do?
While there is not a one-size-fits-all answer, in the majority of cases, there is little benefit to refusing to comply with a breathalyzer test. Refusing to provide a breath sample is considered a criminal offence and will result in an immediate suspension of your license, possible fines, and lifelong consequences such as a criminal record. There are very few circumstances where you might have a valid reason for refusing a breathalyzer, such as a medical issue where you physically can not perform the test. Valid reasons for refusing a breathalyzer are very challenging to prove in court.
But don’t I have the right to a lawyer before providing a breath sample? Yes and no. There are two different types of breathalyzer tests that measure the amount of alcohol in the blood: an approved screening device (ASD) and an approved instrument (AI):
If you’ve been pulled over for suspected DUI, you will be asked to provide a roadside breath test using an ASD. You do not have the right to a lawyer before taking this screening test. An ASD will register as a “pass” (under 50mg of alcohol per 100 mL of blood), “warn” (between 50mg and 80 mg per 100 mL), or “fail” (over 80mg per 100 mL). If you’ve been pulled over for impaired driving and you believe you will fail this roadside test, it’s a common misconception that refusing to comply with the screening will be to your benefit. Unfortunately, this is almost always untrue.
If you do refuse the ASD breathalyzer test, you will be charged with refusing to comply with a police demand, and you will likely face the same penalties as though you had failed the test. This comes with serious lifelong consequences. Your license will be automatically suspended and you will face harsh fines and a criminal record. You will likely need to appear in court and may even face jail time, especially if it is not your first offence.
If you blow a “warn” on an ASD you will receive a suspension of your license (three days for a first offense, more for subsequent offenses) and will need to pay any related administrative penalties.
Driving with a BAC over 80mg of alcohol per 100 mL of blood is considered a criminal offense. If you do blow a “fail” on a roadside ASD, you will be taken to a police station to take another test with an AI. This breathalyzer test will measure your exact BAC. You DO have the right to a lawyer before taking this second test. However, refusing to provide a breath sample altogether will result in a criminal offense and you will face similar penalties as though you had failed, including fines, a license suspension, and a lifelong criminal record.
This blog post is meant to provide information, but it does not substitute for legal advice, nor does it establish a client-solicitor relationship with a lawyer. If you do need legal advice for charges you are currently facing, such as a DUI or refusing a breathalyzer test, please get in touch with our office at Brett Gladstone Law Corp.