If Ontario Provincial Police (OPP) pull you over for a traffic stop, don’t be surprised when the officer requests a mandatory roadside alcohol breath test from you. In May, the OPP announced that its officers would conduct roadside breath screening on every driver they stop to check for potential impairment. OPP enacted the new policy to take full advantage of the federal mandatory alcohol screening law that was amended in 2018 to allow police to demand a breath test from drivers even absent suspicion of impairment.
This raises the question of whether you can refuse an officer’s roadside breath test demand. The simple answer is that yes , you can; however, by refusing it, you face arrest for criminal driving under the influence (DUI) of alcohol charges. With extensive experience successfully defending Greater Toronto Area drivers against DUI charges, the criminal defence DUI lawyers of Toronto’s Mass Tsang can tell you everything you need to know about refusing a roadside alcohol breath test in Ontario.
Section 320.27 (1) and Section 320.15 of the Criminal Code have long allowed police officers to demand a driver undergo roadside alcohol and/or drug screening if an officer suspects that they are driving impaired. In 2018, legislators amended the Code to allow police to screen any driver, even absent suspicion, provided the officer has an approved screening device in their possession. The mandatory alcohol screening amendment in Section 320.27 (2) states:
“If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.”
To date, the amended law has survived several constitutional challenges in the courts. However, Ontario judges have been known to dismiss related DUI charges when an officer has requested that another officer bring an approved screening device to their location.
The Federal consequences of refusing roadside screening are the same as they are for a standard DUI, codified by Section 320.14 of the Code. Section 320.19 penalties for DUI and refusing roadside screening range from a minimum fine of $2,000 as an indictable or summary judgment offence to a maximum sentence of 10 years imprisonment when charged as an indictable offence and a maximum of two years as a summary conviction. As a criminal charge, a DUI for refusing roadside screening also comes with a criminal record upon conviction.
Ontario’s Highway Traffic Act mandates additional penalties for anyone who refuses a police officer’s demand for roadside screening. First, the law carries an immediate 90-day administrative driver’s license suspension, a $550 administrative penalty, a seven-day vehicle impoundment, and a $275 vehicle impoundment fee. Drivers who are ultimately convicted of DUI based on refusing the screening face additional provincial penalties and consequences, including:
Police and drivers have distinct legal obligations regarding roadside breath testing. The basic legal requirement for the driver is that they submit to testing or face arrest for DUI. Drivers do not have the right to consult with a lawyer before consenting to roadside testing, as the Charter of Rights and Freedoms only affords this right to those placed under arrest.
When police demand a roadside breath test, they must clearly explain the driver’s legal obligation to submit to testing and the legal consequences they face—DUI arrest and possible conviction of a criminal offence—if they refuse the test. The police officer must further ensure that the driver understands the legal obligations and consequences and is physically capable of providing a breath sample. Officers are also required to ensure that the approved screening device is properly working by conducting periodic testing. Police cannot use physical force to compel a driver to submit to testing.
If police fail to follow these legal obligations, drivers arrested for related DUIs can challenge the lawfulness of the arrest based on procedural errors. Skilled DUI lawyers are adept at successfully challenging refusing-to-submit-to-breath-testing DUIs in court based on police failure to follow their legal obligations.
Police can arrest a driver for refusing roadside breath testing under two parameters: 1.) the driver outright refuses to submit to roadside testing, or 2.) the driver fails to provide a suitable sample of breath into the device. Under the second parameter, police must present evidence proving that while the driver put their lips on the screening device’s mouthpiece, they failed to breathe into it. This evidence is as simple as explaining that the device did not emit the buzzing sound that indicates incoming breath.
Absent police procedural mistakes and potential medical issues, defending against a refuse roadside screening DUI charges is quite challenging. In fact, most DUI lawyers recommend that you should always submit to the testing. Medical issues that can count as a reasonable excuse for refusing roadside screening (or failing to provide a sufficient breath sample) include:
Even if a skilled DUI lawyer cannot mount an effective defence against the charges based on procedural mistakes or medical issues, they may be able to otherwise secure a favourable outcome, like reduced charges, depending on the specific details of the case. Thus, you should always consult with a competent DUI defence lawyer if arrested on refusing roadside screening DUI charges.
With decades of successful DUI defence in the Greater Toronto Area, the DUI lawyers of Mass Tsang can help you navigate the legal system and strategize an effective DUI defence. If you or someone you know is facing any impaired driving-related legal issues, contact Mass Tsang today .
