Refusing to “Blow”
If the police suspect that you have been drinking and driving, they will ask you for a breath sample. You will be asked to breathe into an ASD. This is typically referred to as a roadside police demand. If you do not comply, you will be charged with refusal.
What is an ASD?
ASD (Approved Screening Device) is a machine designed and calibrated to determine whether you have alcohol in your system.
Penalty for Not “Blowing”
It may surprise you that this offence carries the same penalty as impaired driving and “over-80” (driving while one’s blood alcohol concentration or “BAC” exceeds the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood).
If you are a first offender, you will be facing a fine of no less than $1,000. Those convicted of second or subsequent offences are liable to minimum terms of incarceration of 30 and 120 days, respectively.
You are also subject to an immediate 90-day roadside licence suspension for refusing a drug or alcohol test. You will also have to pay a $180 administrative penalty and your vehicle will be impounded for seven days.
How Will the Crown Prove Their Case?
There are 3 elements of the offence that the Crown must prove beyond a reasonable doubt.
- The Crown must prove the existence of a demand,
- The Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood,
- The Crown must prove that the defendant intended to produce that failure.
The Court will ask whether there is knowledge or proof of some form that you intentionality refused the demand.
Did the Police Have Reasonable Suspicion?
The police can make a roadside ASD (Approved Screening Device) demand if they reasonably suspect that you have consumed alcohol or reasonably believe you are driving while impaired or over-80. Reasonable suspicion is determined on a case-by-case basis. For instance, did the police allege erratic driving or speeding? Did someone call 911 alleging impaired driving? Was it a RIDE program? Did you make admissions of alcohol consumption? Were there empty beer bottles in your car?
Was the Instrument in Proper Working Order?
The ASD, the approved screening device, must be in proper working order. To find out, a lawyer can request for calibration and other instrument records pertaining to the device.
Was There a Demand?
The essential elements of the offence described in s. 254(5) consist of a proper demand and a refusal or failure to comply with that demand. The Crown has to prove that the police demanded a breath sample from you. You cannot refuse something that was not demanded from you.
Is the ASD Sample Evidence?
The results of such roadside screening are not admissible as evidence. However, it may serve as an evidentiary basis for a further police demand compelling you to breathe into an instrument authorized to measure your exact BAC, which evidence is then admissible on a charge of Over 80.
The Crown does not need to prove that you had any specific intent to bring about the failure to provide a suitable breath sample. The Crown need only establish that you had knowledge or intention that you were being reckless with respect to providing a suitable breath sample.
If there was an outright refusal, you are presumed guilty. After all, you unequivocally refused to blow. Absent of an unequivocal refusal more proof is then required. Usually, that proof will flow from the inference that a person intends the natural consequences of his/her acts. The inference is often drawn from proof that an adequate sample was not provided after a 1) clear explanation was given as to how to blow into the device and 2) after you were given an adequate opportunity to blow into a device that was in good working order.
You can argue that you did not intentionally refuse to provide a sample. The Court will then analyze the evidence as whole to determine if there is enough evidence to prove that you intentionally refused to blow. The standard here is beyond a reasonable doubt.
Once the Crown has established the three elements of the offence in question, you are presumed guilty unless you raise a defence. The defence of “reasonable excuse” is engaged only after the Crown has proved a proper demand and a failure or refusal to comply with that demand. You are able to present not only a defence ordinarily cognizable by law, but a defence constituted by any excuse that is “reasonable”. This is the effect of the use of the phrase “without reasonable excuse” in the context of s. 254(5). The standard of proof is on the balance of probability in relation to the defence of reasonable excuse. Once the defence has put the issue into play the burden rests on the Crown to negate it beyond a reasonable doubt.
If you were willing to provide samples and you attempted to comply with the demand BUT you were unable to do so due to a medical excuse, this may give raise for a reasonable excuse.
How Will the Court Assess the Evidence?
- Did the police give you many opportunities to provide a sample?
- Did the officer pounce on the first utterance of a refusal?
- Did the police jump to conclusions about a refusal?
- Did the police ask if you’ve ever blown into this machine?
- Did the police described in some detail good explanation of how to blow into the ASD?
- Was your refusal to blow an act of defiance?
- The Court will ask if there is reasonable doubt as to whether your failure to comply with the breath demand was intentional.
- The Court will determine whether you were trying or just fooling around to avoid the test.
Call a Lawyer
If you are stopped by a RIDE program and the police demand for a breath sample, please call JKPC for legal advice. You do not have the right to consult a lawyer before performing the roadside test. However, you do have the legal right to consult a lawyer before performing the breathalyzer test at the police station.