Impaired driving laws in Ontario and across Canada have changed significantly over the past decade. One of the most impactful developments was the introduction of mandatory alcohol screening , which expanded police powers to demand roadside breath samples from drivers even without suspicion of impairment.
As a result, many drivers now face a critical, often misunderstood question during routine traffic stops: Can you legally refuse a roadside breath test in Ontario, and what happens if you do?
While the short answer is that refusal is physically possible, the legal consequences of refusing a roadside breath test are severe and, in many cases, mirror or exceed those of a standard impaired-driving conviction.
This article explains roadside breath testing in Ontario under the Criminal Code , the Canadian Charter of Rights and Freedoms , and Ontario’s Highway Traffic Act : what police may demand, what drivers must do, and how refusal cases are defended.
Roadside breath testing in Canada is governed by Part VIII.1 of the Criminal Code , specifically sections 320.27 and 320.15 .
Prior to 2018, police were generally required to have a reasonable suspicion that a driver had alcohol in their body before demanding a roadside breath sample. That changed with Bill C-46.
Under s. 320.27(2) , a peace officer who has an approved screening device in their possession may, in the lawful exercise of their powers, require a person operating a motor vehicle to immediately provide samples of breath that enable a proper analysis.
This provision forms the legal foundation for mandatory roadside screening used by the Ontario Provincial Police and municipal police services across Ontario. How that demand fits into the broader DUI arrest process in Ontario — stop, screening, arrest, station testing — is a separate timeline question; this page focuses on the refusal choice at the roadside ASD stage.
From a purely physical standpoint, a driver can refuse to comply with a police demand. Legally, however, refusal is a criminal offence.
Under section 320.15(1) of the Criminal Code , it is an offence to:
Refusal typically triggers immediate arrest and criminal charges. The broader meaning of refusal or failure to provide a sample — including station breath and blood demands — is related but wider than the roadside ASD question.
“Refusal cases are prosecuted just as aggressively as impaired driving cases — and often with fewer evidentiary hurdles for the Crown,” — Robbie Tsang, Criminal Defence Lawyer & Managing Partner
Refusing a roadside breath test is punished under s. 320.19 . The offence shares the same basic hybrid framework as impaired operation and over 80, but Parliament set a higher first-offence minimum fine for refusal .
For a conviction under s. 320.15(1), typical first-look federal consequences include:
| Consequence | First offence (typical floor) | Notes |
|---|---|---|
| Minimum fine | $2,000 (s. 320.19(4)) | Higher than the $1,000 floor for a basic first s. 320.14(1) conviction |
| Driving prohibition | Mandatory (s. 320.24) | Length depends on offence history and sentencing |
| Second offence | Minimum 30 days jail | Escalates further for subsequent offences |
| Subsequent offences | Minimum 120 days jail | Plus longer prohibitions |
| Criminal record | Yes, on conviction | Unless later addressed through a discharge (rare on these facts) or record suspension |
A conviction also results in a permanent criminal record unless later addressed through a discharge or record suspension where legally available.
The right to counsel under s. 10(b) of the Charter arises upon arrest or detention. Courts have consistently treated immediate roadside ASD compliance as compatible with brief investigative detention: delaying to consult a lawyer would defeat the purpose of roadside screening.
Drivers may exercise the right to counsel after arrest — for example, before evidentiary breath testing at the station — not as a free-standing right to postpone a lawful roadside ASD demand.
In addition to criminal charges, refusal triggers automatic administrative penalties under Ontario law. Those provincial consequences operate even if the criminal charge is later withdrawn or defeated.
Typical immediate administrative consequences for refusal include:
Exact dollar amounts and forms can change with Ontario’s administrative-penalty schedules; counsel should confirm the notices actually issued on your file.
If convicted, drivers typically face:
These provincial consequences apply regardless of whether the driver was actually impaired.
Drivers are legally required to:
Failure to do so may be interpreted as a refusal or failure to provide.
Police officers must:
Police cannot use force to compel a breath sample.
“Many refusal cases hinge not on what the driver did, but on whether the officer strictly complied with the law,” — Heather Spence, Criminal Defence Lawyer & Partner
Refusal can occur in two primary ways:
In the second scenario, police must demonstrate that the driver failed to provide a sample that enables a proper analysis — often framed as inadequate airflow or repeated unsuccessful attempts without a reasonable excuse.
Defending refusal charges is challenging but not impossible. Successful defences typically fall into two categories.
Examples include:
Courts have dismissed charges where officers attempted to call for a device later, rather than having one in their possession at the time of a s. 320.27(2) demand.
A refusal may be excused if the driver was genuinely unable to provide a sample due to:
These defences require medical or other supporting evidence and are assessed strictly.
From a legal defence perspective, the answer is almost always no.
Refusal charges:
Most experienced DUI lawyers advise compliance with a lawful roadside demand, followed by immediate legal counsel if charges arise.
Refusing a roadside breath test exposes drivers to some of the harshest consequences in Canadian impaired-driving law. Early advice can identify procedural errors, assess Charter issues, and protect licensing options before positions harden.
“The moment a refusal occurs, the case becomes highly technical. Early defence strategy matters enormously,” — Jeff Mass, Criminal Defence Lawyer
The Greater Toronto Area lawyers at Mass Tsang have decades of experience defending impaired-driving and refusal cases, with close attention to police procedure and Charter rights. If you are facing refusal charges, seek advice promptly.
You can physically refuse, but legally a refusal is a criminal offence under the Criminal Code . Refusing a lawful demand can result in arrest and impaired-driving–equivalent (or more severe) charges.
Refusal may lead to immediate arrest, criminal charges, a minimum $2,000 fine on a first conviction, a criminal record upon conviction, and licence suspension and vehicle impoundment under Ontario law.
No. Under mandatory alcohol screening, police may demand a breath sample from any lawfully stopped driver if they have an approved screening device in their possession.
No. The right to consult a lawyer arises on arrest or detention for fuller consultation after the roadside stage — not as a right to postpone a lawful ASD demand.
They sit in the same Part VIII.1 punishment framework, but a first refusal carries a higher minimum fine ($2,000) than a basic first impaired-operation conviction ($1,000). Repeat-offence jail minimums and driving prohibitions remain serious for both.
Defences may exist if police failed to follow proper procedures, if the demand was unlawful, or if the driver had a genuine medical or cognitive condition preventing them from providing a breath sample.
