Refusal Charges or Failure to provide breath sample.

Have you been charged with refusal to a provide a breath or blood sample?

In the Ontario Court of Justice the charge of “refusal” occurs when a person, without reasonable excuse, fails or refuses to comply with a lawful breath or blood demand made to him by a peace officer. The penalties for this charge are as severe as impaired driving or driving over .08. (Over 80) A Refusal may also be issued if the accused attempted but failed to breathe sufficiently into the machine as to provide a reading.

This type of charge can occur if you do not comply with the officer to give a test with either a roadside screening device or with a breathalyzer at the police station.

The prosecution’s case

The police officer will usually testify in the Ontario Court of Justice that you refused to comply with his/her demand. The officer will also testify the reasons why he demanded a sample of your breath or blood.

Challenging the prosecution’s case

A refusal to give a breath test or blood sample does NOT mean you are guilty. The Criminal Code has a set of rules and regulations that MUST be followed for a breath or blood test demand to be lawful. If the demand for a breath or blood test does not abide by these rules, it is not a lawful demand and your refusal case may be dismissed. This is why it is important to retain a criminal lawyer that devotes the majority of his/her practice to impaired driving, Over 80 and Refusal charges. In order for a police officer to demand the blood or breath test, he/she MUST have reasonable and probable grounds. If reasonable and probable grounds are not proved, then your refusal case may be dismissed. A possible defence for refusing to comply with the officer’s demand may have been a legitimate medical issue. Also, perhaps you were not able to sufficiently breathe into the machine to give a reading due to physical respiratory disabilities. The officer must also gather the samples within a specific time frame otherwise your charge may be fully dismissed.

If you were unable to provide a breath sample, the police may have demanded that you provided a blood sample. If this is the case, a whole new set of rules and requirements must be met before the prosecutor can even begin using the analysis of your blood sample as evidence against you. In addition to this, BOTH police officers must have the same story and sufficient evidence. If the two police officers stories do NOT match up and there isn’t sufficient evidence to prove you are guilty, you will likely be acquitted of the charge. (This means a full dismissal or WIN)

An experienced criminal lawyer specializing in impaired driving, over 80 and refusals will know how to use all of the legal defences available to defend your case. Brian Starkman has successfully won many impaired driving, Over 80 and refusal charges at trial in the Ontario Court of Justice. Mr. Starkman is Ontario’s #1 ranked DUI Lawyer according to and may be able to win your refusal charge.

Call 1 866 WE WIN 01 for your free consultation with Mr. Starkman today! He will explain which defences may work to win your refusal charge!