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What Does Refusal or Failure to Provide a Sample Mean in Canadian DUI Law?

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While Canadian impaired driving laws are designed to penalize drivers for operating motor vehicles while drunk or high on drugs, the regulations can inadvertently punish a driver who hasn’t consumed any alcohol or drugs. That is, if a sober driver refuses to comply with a law enforcement officer’s demand for roadside or police station screening for intoxication or drug use or willfully fails to provide a usable testing sample.

While this may sound farfetched, refusal or willful failure to undergo approved screening is treated the same as an impaired driving charge under the law and carries the same penalties. Whether or not you consumed any alcohol or drugs before driving is usually immaterial to the case, though it has been raised in cases involving failure to provide a useable sample.

With extensive experience defending Greater Toronto Area clients against the “refusal” charge, the criminal defence DUI lawyers of Mass Tsang know first-hand that many people find it confusing. For some, the demand for screening represents a potential “damned if you do — damned if you don’t” scenario. For those facing a roadside demand, concern might arise that their right to consult with a lawyer is being impinged. And some people are concerned — sometimes rightfully — that the reliability of the screening device being used may be faulty. The flashing blue lights and stated and implied threat that comes with a demand for screening also make it difficult to make a reasoned response to the request.

To help our readers better understand this aspect of DUI law, we’re going to detail the legalities of the refusal law and help you better understand how it works in practice.

According to the Canadian Criminal Code

Failure or refusal to comply with a demand for an alcohol or blood sample is covered under Section 320.15 of the Canadian Criminal Code. Subsection (1) states, “Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under Section 320.27 or 320.28.” Section 320.27 details how law enforcement officers can legally make the demand for a roadside coordination test, a breath screening test, or an approved drug screening test.

Know that before changes in Canada’s DUI laws in 2018, police had to have reasonable suspicion or evidence that a driver was impaired before demanding a roadside test. Amendments to the law now allow police to order a screening sample from any driver they pull over or stop at a roadblock. However, the language specifically states that the police officer must have “in his or her possession an approved screening device.” An Ontario court has already made it clear that police cannot unduly detain a driver to await the arrival of another officer who has a screening device in their possession.

Section 320.28 details how law enforcement can legally demand that a suspected impaired driver submits to testing at the police station to detect alcohol or drug concentrations. This section gives police the option of demanding a breathalyzer test, blood screening, urine screening, oral fluid screening, or that the suspect submits to a 12-step drug recognition expert (DRE) evaluation . Combined with Sections 320.29 through 320.4, this section also provides detailed guidance on how screening and testing must be conducted, the preservation of related evidence, and other protocols relating to testing and screening. It should be noted that police failure to follow any of these directives opens the screening/testing evidence up to legal challenge.

Penalties for Refusing a Demand

As previously noted, a conviction for refusing or otherwise failing to comply with a demand carries the same penalties as a standard DUI. To refresh you on the implications of a DUI conviction, consider that a first-time DUI carries the following minimum penalties and other repercussions:

  • $1,000 fine.
  • One-year driver’s license suspension.
  • Mandatory enrollment in Ontario’s “ Back on Track ” education/treatment program, with its $634 fee.
  • Likely enrollment in an Ignition Interlock program, with $1,000-plus fees.
  • “High Risk” annual insurance premium increases ranging from $2,000 to $10,000, lasting up to six years.
  • Minimum $281 in fees for driver’s license reinstatement .
  • A permanent criminal record that may jeopardize employment, educational opportunities, and your ability to freely travel.
  • Alternative transportation costs during license suspension.

Refusal or failure to comply with a demand carries much stiffer penalties if the order was made due to an accident, especially if it caused injuries or death (the latter carrying a maximum sentence of life imprisonment. Aggravating circumstances, such as dangerous driving or having children in the vehicle, can also lead to enhanced penalties.

Prevalence of Refusal or Failure to Comply with Demand Charges

Based on the latest data from Statistics Canada, most drivers charged with any form of impaired driving comply with the demand for testing or screening. Of 38,252 people arrested in Canada for impaired driving in 2021, less than 3,000 (7.8%) were charged with refusing or failing to comply with a demand.

Other Things You Should Know

We trust that you will not join these statistics, but here is a bit more information to help you if you are facing such, or to help you make an informed decision if police present you with the demand:

  • You do not have the right to consult with a lawyer before complying with a demand for roadside screening. You do have this right before complying with a breathalyzer demand or other police station testing after you have been arrested.
  • Defending such cases based on “refusal” is problematic because your refusal is essentially the evidence. However, potential Charter Rights violations and procedural mistakes can provide the defence with an opening.
  • Defending cases based on “failure to provide a useable sample” holds more potential promise because people can have physical disabilities or other limitations that may make their efforts to comply difficult. Courts have established that the failure must be willful in nature.
  • You are usually better off complying with a roadside demand because roadside screening can only be used to arrest you, and the results cannot be used in court.

Consult with Mass Tsang for Expert DUI Defence

No matter what DUI-related charges you or a loved one might be facing in the Greater Toronto Area, secure the best criminal defence possible with Mass Tsang. To schedule your free consultation, contact Mass Tsang Today .

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