Under Section 254(5) of the Criminal Code, a person commits an offence who, without reasonable excuse, fails or refuses to comply with a demand either for a breath sample to be tested with an approved screening device by a peace officer on the side of the road or by a qualified technician for determination of the person’s blood alcohol concentration.
The offence of refusing to provide a breath sample contrary to Section 254(5) carries the same penalties as the offences of impaired driving and driving with a blood alcohol concentration exceeding 80 milligrams of alcohol per 100 millilitres of blood – a minimum fine of $1,000 and a mandatory driving prohibition of at least 1 year.
Roadside Breath Demand
The police have the right to demand a breath sample from a driver for evaluation with an “approved screening device” (ASD) at the side of the road if they have reasonable grounds to suspect that a driver has alcohol in his or her body and has operated a motor vehicle within the preceding three hours. If done lawfully, the demand for a breath sample by the police for this purpose results in the temporary suspension of the rights of the driver under the Charter of Rights and Freedoms. The driver, though detained, does not have the right to speak to a lawyer before the breath sample is provided, and is required to comply with the demand or else face charges under the Criminal Code. The result of the ASD test is pass, fail or warning. If the test result is a “fail”, the police usually have reasonable and probable grounds to demand a further breath sample for a qualified technician to determine the blood alcohol concentration.
Breath Demand to Determine Blood Alcohol Concentration (BAC)
If the police have reasonable grounds to believe that a person has committed within the preceding three hours the offence of operating a motor vehicle while his or her ability to operate it was impaired by alcohol, they can require the person to provide to a qualified technician a sample of his or her breath to determine the concentration, if any, of alcohol, in the person’s blood. If this demand is made, the person is under arrest and is entitled to the usual rights that an accused person has upon arrest, including the right to be advised of the charges against him or her and the right to instruct and retain counsel without delay. The analysis undertaken by a qualified technician results in a determination of the person’s blood alcohol concentration. If it exceeds 80 milligrams of alcohol per 100 millilitres of blood, charges under Section 253(1)(b) invariably follow.
