There are two ways Police in Ontario can ask motorists for a breath test.

1. first: the officer makes the request using an approved screening device (ASD) at roadside. According to law, a Police officer can make a roadside demand for a breath test only when he/she believes reasonably that alcohol or drugs are present in the operator’s system. That is a pretty low burden of proof. Some indications that may suggest intoxication include: smelling alcohol; bloodshot eyes; having been drinking, etc.
2. second: the officer asks for a sample at the Police precinct using an approved tool. The officer can make this request when he/she has reasonable and probable grounds for believing that the driver was driving under influence of alcohol/drugs and/or was driving with a bac over the legal limit. In this case, information gathered through this method is usually given more credit than that collected roadside.

For both types of requests, for the Refusal charge to stick, the demand must be made legally. If the demand wasn’t made for whatever reason, that provides the accused with good basis for defending themselves.

To achieve a conviction for refusing to provide a breath sample, the Crown must prove each of the following elements beyond a reasonable doubt:

• that a Police officer made a lawful request for a breath sample.
• you received and understood the request.
• you either failed/refused to follow-through with the request without a reasonable excuse.

This last element is where most defences occur. The Crown must show there was no reasonable excuse for not providing the sample and your defence lawyer will evaluate each detail of how you responded to the request and determine whether any valid excuse exists.

Most people refuse breath tests believing they have a legitimate excuse. In reality, almost all legitimate excuses fall short under the law.

"I wanted to talk with my lawyer first."— this is the number one reason people refuse. If you requested any assistance from a lawyer before the demand was made, and you did not have enough time to speak with them before the demand was made, then there will certainly be a defence available based on your Charter rights. However, if you speak with your lawyer after consulting and the demand is repeated, then your continuing Refusal to comply cannot be justified in any way.

"I have a medical condition."— while certain severe medical issues related to breathing which prevent an individual from obtaining an accurate breath test result may justify compliance failure, those same conditions must exist, be proven, and directly relate to the inability to complete compliance. Simply saying performing the test is difficult isn’t good enough.

"I did not understand what you were asking me to do."— if you can prove without a reasonable doubt that due to language barriers or some other impediment you were unable to comprehend what you were being asked to do, then this could be used as a defence. This ties into the Crown needing to prove you knew what you were being asked and complied.

"I thought I didn’t have too.”— this is never acceptable as an excuse. A simple mistake in thinking you don’t have too is not going to save you.

A Refusal charge carries significant ramifications and should be approached with serious caution from inception. Believe that fighting this charge will be easy without representation or that you’ll run into difficulty just because you simply declined taking the test.

It is critical that you contact your criminal defence lawyer immediately after receiving notice of charges prior to appearing in court and prior to speaking about the matter. Your lawyer will assess your responses regarding the particularities surrounding the demand for sample and will attempt to uncover whether any infringement occurred to your rights and develop your defence strategy accordingly.