The offence of refusing to comply with a demand (also called a refusal to supply a sample of breath or complying) is provided under Section 320.15 of the Criminal Code.
Any driver can receive an order to supply a sample of breath. The police officer may first order the suspect to breathe into the breathalizer at the site of the arrest, and then order him or her again to supply a sample into the breathalizer at the station. A person who refuses to comply with this order, without a reasonable excuse, commits an offence.
This order shall be given and carried out immediately. Most charges result from clear refusal by the defendant to try the test or if the defendant’s breath does not make it possible to get results from the machine. The means of defence usually invoked are the following: the defendants claim they tried in earnest to use the breathalizer but it did not work; the health of the defendants prevented them from blowing or justified their refusal; the order given by the police officer was not stated properly or justified legally; the order was only carried out after a delay of several minutes, or the constitutional rights of the defendants such as the right to a lawyer were not respected.
The person found guilty shall have to pay a minimal fine of $ 2,000 and shall be forbidden from driving for 1 year (even longer under the Highway Safety Code).
See examples of cases in which a client was acquitted for the offence of refusing to comply.
