Many people assume that refusing to provide a breath sample avoids an impaired driving charge entirely. In fact, refusing a lawful demand is its own separate criminal offence, carrying penalties at least as serious as being convicted of impaired driving itself. This guide explains how this offence is defined under section 320.15 of the Criminal Code, when a demand is considered lawful, potential penalties, and what generally happens after this kind of charge in Ontario. It is general legal information, not legal advice about a specific case.
What Does This Offence Cover?
Section 320.15(1) of the Criminal Code makes it an offence to fail or refuse, without a reasonable excuse, to comply with a demand made under the sections of the Code governing roadside screening, breath testing, blood testing, or physical coordination testing for suspected impaired driving. This covers not only an outright verbal refusal but also conduct that amounts to a failure to comply, such as deliberately failing to provide a sufficient breath sample despite repeated attempts, in a way that suggests an intentional effort to avoid providing a usable result.
What Makes a Demand Lawful
For this offence to apply, the underlying demand must have been made lawfully. Since 2018, police in Canada have broad authority to make a roadside screening demand from any lawfully stopped driver, without needing a prior suspicion of alcohol consumption. A demand for an evidentiary breath or blood sample at a police station generally requires a higher threshold, such as reasonable grounds to believe the person has committed an impaired driving or "over 80" offence. Whether the specific demand made in a case met the legal requirements is often a central issue in these cases.
Classification and Penalties
Refusing a Breath Demand (Section 320.15) at a Glance
- Classification
- Hybrid offence (Crown elects summary conviction or indictment)
- Maximum penalty – indictment
- Up to 10 years imprisonment
- Maximum penalty – summary conviction
- Up to 2 years less a day and/or a $5,000 fine
- Mandatory minimum – first offence
- A fine of at least $2,000
- Mandatory minimum – second offence
- At least 30 days imprisonment
- Mandatory minimum – third or subsequent offence
- At least 120 days imprisonment
These figures reflect the Criminal Code as of this page's last update. Notably, the mandatory minimum fine for a first offence of refusal is higher than the base minimum for impaired driving. A criminal lawyer can confirm the current state of the law for a specific case.
The "Reasonable Excuse" Defence
The Criminal Code does not define "reasonable excuse" exhaustively, leaving courts to assess the circumstances of each case. A genuine medical condition that makes it physically impossible to provide a sufficient breath sample, such as a significant respiratory condition, can potentially amount to a reasonable excuse, particularly where supported by medical evidence. Confusion, nervousness, or a general unwillingness to comply generally does not meet this threshold. Whether a specific circumstance qualifies as a reasonable excuse is a fact-specific legal question that depends heavily on the evidence available.
Why the Penalty Is Not Lighter
Parliament designed this offence with penalties at least as serious as impaired driving itself specifically to remove any incentive to refuse testing as a strategy to avoid a conviction. If refusal carried a lighter penalty than being caught with a high reading, drivers would have a strong incentive to refuse testing whenever they suspected they might be over the legal limit. By setting the mandatory minimum fine for refusal higher than the base minimum for impaired driving, the law removes any potential benefit to choosing refusal over compliance.
Refusing a demand does not prevent a conviction; it simply changes what the Crown needs to prove. Instead of relying on a breath or blood test result, the Crown proves the elements of the refusal offence itself, which does not require any evidence of the person's actual blood alcohol concentration.
Some people refuse testing out of a mistaken belief that police need consent or that refusal is a form of legal protection. Neither is accurate: a lawful demand does not depend on consent, and refusal creates a separate, serious criminal exposure of its own.
Other Possible Defences
Beyond the reasonable excuse defence, cases often turn on whether the underlying demand was actually lawful, whether the person understood that a demand had been made, particularly where there is a language barrier or a communication issue, and whether the conduct in question truly amounted to a refusal or failure, as opposed to a genuine attempt that simply did not produce a usable sample. A criminal lawyer should review the specific circumstances, including any video or audio recording of the interaction, before advising on possible defences.
What Happens After This Charge
As with impaired driving itself, a person charged with refusal typically faces an immediate roadside licence suspension under Ontario's provincial rules, separate from the criminal process. The criminal case then proceeds through the standard court process, including disclosure of the police officer's notes and any available recording of the demand and refusal, before moving toward a resolution or a trial. See our sentencing overview and criminal records overview for more.
The right to speak with a lawyer, discussed on our right to a lawyer page, generally applies before a person must decide how to respond to a breath or blood demand, though the timing and practical availability of that right in a roadside or police-station setting can itself become an issue in some cases. Understanding this right in advance, before ever being in this situation, can help someone make an informed decision if they are ever asked to provide a sample.
Frequently Asked Questions
Is it better to refuse a breath test than to fail it?
No. Refusing a lawful demand is a separate criminal offence with penalties at least as serious as impaired driving itself, specifically designed to remove any advantage to refusing testing.
Do I have to comply with a roadside screening demand even without being suspected of drinking?
Since 2018, police can generally make a roadside screening demand from any lawfully stopped driver without needing a prior suspicion. Refusing this demand without a reasonable excuse can result in this charge.
What counts as a "reasonable excuse" for not providing a sample?
This is assessed case by case. A genuine medical condition preventing a person from physically providing a sufficient sample can potentially qualify, particularly with supporting medical evidence, but general reluctance or nervousness typically does not.
Can I be charged with refusal if I tried but couldn't produce enough breath?
This depends on whether the circumstances suggest a genuine, good-faith attempt or an intentional failure to comply. This is often a contested factual issue that depends on the specific evidence.
Is the fine for refusal really higher than for impaired driving?
Yes, for a first offence, the mandatory minimum fine for refusal is generally higher than the base minimum fine that applies to a straightforward impaired driving or "over 80" conviction, reflecting Parliament's intent to remove any incentive to refuse testing.