Refusal to Provide Breath Sample
Breathe Right Sample
Under the simplistic understanding of the law, any person who refuses to provide a breath sample in response to the police officer’s demand without reasonable excuse is guilty of an offence…, or so it seems.
First of all, there are two types of breath tests which a motorist may be required to provide. First is a roadside test which occurs when the officer suspects that you operate a motor vehicle and have alcohol in your body. This test is provided into an approved screening device and if the result is “fail”, the officer will charge you with the offence of Over ’80 and take you into custody so that further breath samples can be supplied into an approved instrument which will determine actual concentration of alcohol in your blood. This is the second type of breath test. If the officer arrests you for impaired driving, the first type of test will not be required and you will be taken to the police station or mobile unit for the second type of test.
The breath tests must be administered in accordance with specific legislative scheme and certain requirements have to be satisfied in order for the breath sample demand to be valid. Each fact scenario must be carefully scrutinized by an experienced impaired driving lawyer for possible violations of the requirements of the Criminal Code and/or the Charter.
For example, prior to demanding a breath sample into an approved screening device, an officer must have reasonable suspicion that you operated or had care or control of the motor vehicle and have alcohol in your body. If the officer does not have such suspicion, the demand is invalid and your refusal should not result in conviction. Similarly, in case of the demand to provide breath samples into an approved instrument the officer should first form reasonable and probable grounds to believe that you operated or had care or control of the vehicle while your ability to do so was impaired or while the concentration of alcohol in your blood exceeded 80 mgs of alcohol in 100 ml of blood.
The question, of course, becomes what suspicion is reasonable and what constitutes sufficient reasonable and probable grounds. The answer depends on particular facts of each case and application of general principles developed in previously decided cases to those facts. It is the task of an experienced impaired driving lawyer to expose lack of prerequisite grounds for issuing the breath demand.
The other issue of concern is the qualifications of the officer who operates the particular device or instrument. While the approved instrument must only be operated by qualified breath technician, any officer can administer a roadside screening test which does not mean he or she knows how to do it. There are currently three different approved screening devices in use by the police and while their operation does not require great skill, officers often simply do not have sufficient knowledge which may result in charging a person who is innocent. I had several cases in which my clients were acquitted specifically because the officers did not know how to operate the approved screening device or misinterpreted the results. Of course, in order to mount this defence, your lawyer should be familiar with the operation of different devices and have working knowledge of their respective manuals.
Timing of breath demands and breath tests is also extremely important. For instance, the approved screening device demand and test must be administered forthwith. The meaning of “forthwith” has been the subject of numerous Court decisions and depends on the facts of your particular case. If “forthwith” requirement is not satisfied, the resulting violations of your constitutional rights may lead to exclusion of evidence concerning your refusal to provide breath sample which, in turn, will result in acquittal.
In case of demands for breath samples to be supplied into an approved instrument, they must be issued as soon as practicable. Again, the meaning of “as soon as practicable” varies from case to case. In some cases, the delay in issuing the approved instrument breath demand for as little as 11 minutes resulted in acquittal.
Then there is an issue of reasonable excuse. What constitutes reasonable excuse depends on the circumstances, examples include medical problems, anxiety, hysterical condition, language difficulties, etc.
In cases of multiple unsuccessful attempts to provide breath samples, the issue often arises where should the police draw the line, in other words, how many chances should the person get before being charged with refusal. The number of attempts given, the officer’s and the accused’s actions, the accused’s request for further attempts are just some of the factors relevant to this determination.
All of the above information barely scratched the surface of the issues involved in this offence and potential defences available to a person charged with refusal to provide breath samples. Considering its technical complexity, the phrase “don’t try this at home” should be modified to “don’t try this in Court” unless you have an experienced impaired driving lawyer by your side.