If You Have Been Charged With Refusal To Provide A Breath Sample, Call Jamie Butler – 604-318-3838
If you’ve been charged with refusal to provide a breath sample as a result of a drunk driving accusation, our Vancouver DUI attorney at Butler & Company has acted as counsel in thousands of cases all over British Columbia. He can help you every step of the way in these matters whether it is to obtain a plea negotiation (often involving no further license prohibition) or as competent and diligent counsel at trial.
The Criminal Code of Canada defines the charge this way:
254. Refusal to provide a breath sample
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
The Criminal Code of Canada sets out the legal requirements for the police to actually obtain breath or blood samples as follows:
254. Testing for presence of alcohol or a drug
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
Samples of breath or blood
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 [impaired driving] as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
- (i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or
- (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and
(b) if necessary, to accompany the peace officer for that purpose.
The legal basis for a failure or refusal to provide breath samples charge:
The basis of this charge is that someone (who is usually a driver) was requested by a peace officer to provide a sample of their breath or sample of their blood but that that person unreasonably failed or refused to provide breath samples to the police.
The criminal law provides that, provided certain requirements are met or shown by the police to exist, then a person MUST submit to a breathalyzer request made by them. Sometimes, for instance at a roadblock the police request a driver to provide a sample of breath into a handheld device commonly referred to as a “roadside screening device”. Other times the police ask for a driver to come with them to the station to provide samples of breath into an actually breathalyzer instrument. The failure to provide samples upon the request of the police, including the failure to accompany the police so that they can take samples, barring a reasonable excuse, is an offence at law.
If you think about it if refusing to provide a sample of breath was not a criminal offence then anyone to whom the police lawfully made a request would simply refuse to do so. Thus Parliament has placed an obligation on those whom have been lawfully requested to provide breath or blood samples to do just that by making that “omission” to do something required or him/her unlawful. The failure to provide a sample upon a request by the police is a criminal offence that carries criminal sanctions which are the equivalent of driving while impaired or driving over 80 milligrams.
The basis of a refusal charge is unlike an over 80 milligram charge or an impaired charge. In essence your choice to refuse a breath demand is different that your choice to drive while impaired and the Court recognizes this distinction. If you are charged and convicted of both charges then two separate convictions can and will result.
Defences to a refusal charge:
The defences to a refusal charge are usually very technical in nature and are quite varied. They can involve proven allegations that the police or the prosecution in the broader sense has breached your Charter rights under section 8 (to be free from unreasonable search and seizure) such as where the police did not have the necessary legal required grounds to obtain your breath samples in the first instance OR they may involve allegations of various breaches of section 10 of your Charter of rights (right to be informed and be provided with your right to contact counsel of your choice prior to your provision of breath). The end goal is to get the evidence of the refusal ruled in admissible by the Court. Without the evidence of the refusal in evidence the Crown has no evidence and the charges will be dismissed.
Other defences for refusal charges involve the failure of the Crown to be able to prove a “clear and unequivocal refusal” resulted under the circumstances. In some instances an accused might be requested to give a sample of breath but does not advise directly and clearly that he is refusing. For example, there are cases where the accused has said “I can’t” (referring to his physical ability to provide samples) or “I don’t want to” (referring to his desire to not provide samples) or “not until I speak with my lawyer” (therefore providing a “conditional” refusal). Where a police officer fails to obtain a clear answer to his demand for breath samples then an acquittal may result.
Other defences involve the ability of the accused to actually provide samples. For instance, did you know that a heavy smoker, a person who is prone to asthma or a person who is suffering from some of the more challenging effects of multiple sclerosis, may not be able to provide a proper sample? Medical defences are often offered as reasonable excuses to provide a sample of breath and an accused is acquitted.
The defences to refusal charges are very technical. Jamie Butler is a master at creating technical defences for these such charges. To best determine your defence for this charge you should contact us to discuss the unique facts and circumstances that may apply to your case that may indeed create a technical defence for you. The same applies to other situations like dangerous driving.
Call us at 604-318-3838 (24 hours and 7 days a week) and we can arrange a FREE LEGAL CONSULTATION regarding the possibility of negotiating a plea to your criminal and/or driving charges. Alternatively we also offer a FREE LEGAL EVALUATION of your criminal case by your sending us a brief written description of your case by CLICKING HERE .
Plea deals available to a refusal or failure to provide breath sample charge:
Often times, though not every time, our Vancouver impaired driving lawyer, Jamie Butler is able to secure a plea negotiation for a substitutional charge to be added so that you plead guilty to a Motor Vehicle Act offence (such as “undue care and attention”) instead of a criminal refusal charge. For most information about plea negotiations, the avoidance of a criminal record and retaining your privilege/right to drive CLICK HERE