Impaired Operation: Breath Sample Refusal

In Canada, the offence of impaired operation breath sample—legally known as “failure or refusal to comply with a demand” for a breath sample—occurs when a driver is lawfully required by police to provide a breath sample and, knowing about that demand, refuses or fails to do so without a reasonable excuse. Classified as a hybrid offence under the Criminal Code, this violation is recorded under UCR Code 9240 and prosecuted under section 320.15(1). In practice, the law treats refusing a breath test almost as seriously as actually driving while impaired, with comparable mandatory minimum penalties and a maximum of up to 10 years in prison.

The Legal Definition

“Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.” (Criminal Code, section 320.15(1))

This legal definition, found in section 320.15 of the Criminal Code, breaks down into three key elements the Crown must prove beyond a reasonable doubt:

First, the person must know that a demand has been made. This means the police officer has clearly made a lawful demand under section 320.27 (roadside screening) or 320.28 (evidentiary breath tests at the station or medical facility), and the driver understands that a demand is being made. Confusion or unclear instructions can be directly relevant to this element.

Second, the person must fail or refuse to comply with that demand. This includes openly saying “no,” passively declining, or pretending to blow into the device while not actually providing a proper sample. Third, the failure or refusal must be “without reasonable excuse”. In other words, if there is a legitimate, fact-based reason why the person could not comply (such as certain medical conditions or equipment malfunction), the law may recognize that as a defence. Together, these elements distinguish true criminal refusal from situations where compliance was genuinely impossible or improperly sought.

Penalties & Sentencing Framework

• Offence type: Hybrid (can be prosecuted as summary conviction or indictable).
• Mandatory minimum – first offence: $2,000 fine.
• Mandatory minimum – second offence: 30 days imprisonment.
• Mandatory minimum – third offence: 120 days imprisonment.
• Maximum penalty (generally): Up to 10 years imprisonment (especially on indictment and for repeat offenders).
• Penalties aligned with impaired driving: Sentencing mirrors impaired operation offences under s. 320.14.

Because this offence is a hybrid offence, the Crown can choose to proceed either by summary conviction (typically used for less serious cases or where the accused has a limited record) or by indictment (used for more serious or repeat cases). The mandatory minimums apply in both modes of proceeding. For a first conviction for refusing or failing to provide a breath sample, the court must impose at least a $2,000 fine, even if the matter proceeds summarily.

For a second conviction for impaired operation, breath sample refusal, or other related impaired driving offences under the same regime, the mandatory minimum increases to 30 days in jail. For a third or subsequent conviction, the minimum jumps to 120 days in jail. At the higher end, especially where the Crown proceeds by indictment, the maximum penalty can reach 10 years’ imprisonment. Sentencing judges must also apply other sanctions common in impaired driving cases, such as driving prohibitions, ignition interlock conditions (depending on provincial programs), and victim surcharge requirements.

Courts treat the offence of impaired operation breath sample refusal seriously because it undermines the impaired driving enforcement system. The Criminal Code intentionally sets the penalties for refusing or failing to provide a sample to be on par with, or in some cases harsher than, penalties for actual impaired driving. This prevents drivers from thinking that refusing a test is a safer legal option than complying. Judges consider factors such as prior driving record, presence of collisions or injuries, level of cooperation with police, and any aggravating circumstances (for example, having passengers, especially children, in the vehicle) when crafting a sentence within the statutory range.

Common Defenses

• Reasonable excuse (medical issues, device malfunction, or improper instructions)

  Section 320.15(1) explicitly requires that the refusal be “without reasonable excuse.” A reasonable excuse is a factual circumstance that makes it genuinely impossible or unsafe to comply with the breath demand. For example, some individuals may suffer from serious respiratory conditions (such as advanced COPD, asthma attacks, or other lung disorders) that prevent them from providing a sufficient breath sample even when they try in good faith. In such a case, medical evidence can be critical. Likewise, if an approved screening device or breathalyzer is malfunctioning and repeatedly fails to accept valid attempts, the apparent “refusal” may actually reflect an equipment problem, not a deliberate non-compliance. Another situation arises where police give confusing, incorrect, or incomplete instructions about how to blow into the device or how many samples are needed. If a driver is willing to cooperate but is misled or not properly guided, this can establish a reasonable excuse or at least raise a reasonable doubt about whether there was a true refusal.

• Police failure to follow statutory protocols

  Demands for roadside or evidentiary breath samples must follow the detailed procedures in sections 320.27 and 320.28 of the Criminal Code. These provisions govern, for example, when a roadside approved screening device must be “immediately available”, and how quickly a person must be taken for evidentiary testing once a demand is made. If the officer makes a demand but no approved screening device is available within a reasonable time, or the device is not an approved instrument, or the officer does not comply with mandatory steps (such as ensuring the demand is properly worded and timely), the defence can argue that there was no valid demand to refuse. In those circumstances, what appears as a refusal may not satisfy the legal requirement of failure to comply with a lawful, procedurally sound demand. Courts are attentive to whether police respected timing, device availability, and technical protocols when considering whether a refusal offence is made out.

• Unlawful or invalid demand (lack of reasonable suspicion or Charter breaches)

  Officers generally must have the proper legal basis to issue a breath demand. For many demands, this includes having a reasonable suspicion that the driver has alcohol in their body while operating a vehicle—based on factors such as odour of alcohol, driving pattern, admission of drinking, or other observations. If the officer lacked the required reasonable suspicion or otherwise did not have jurisdiction to make the demand, the demand may be considered unlawful or invalid. An invalid demand cannot ground a conviction for refusing to comply. In addition, where the demand or subsequent procedure violates the accused’s Charter rights, such as the right to counsel under section 10(b) (for example, failing to provide a meaningful opportunity to speak with a lawyer before making an evidentiary demand when required), defence counsel may seek to exclude evidence or argue that the refusal charge itself cannot stand. In essence, if the state does not respect the legal limits and constitutional safeguards placed on breath demands, the accused should not be criminally punished for refusing an improper or illegal demand.

Real-World Example

Imagine you are pulled over on a Saturday night after briefly swerving within your lane. The officer approaches, notices the smell of alcohol, and asks if you have been drinking. After hearing that you had “a couple of drinks,” the officer makes a formal roadside demand for you to provide a breath sample into an approved screening device. You understand what is being asked, but you are worried about the result and tell the officer, “I’m not doing that,” and repeatedly refuse, even after being warned about the consequences. In this situation, if there are no medical issues or equipment problems, and the officer had the legal grounds to make the demand, your refusal would likely be treated the same as an impaired driving offence under section 320.14. You could face at least a $2,000 fine for a first offence, along with a driving prohibition, and more severe penalties for any prior related convictions. The police would document your refusal, you would be charged with impaired operation breath sample refusal under section 320.15(1), and the court would assess whether the officer’s demand was lawful and whether you had any reasonable excuse for not complying.

Record Suspensions (Pardons)

Because failure or refusal to provide a breath sample under section 320.15(1) is a hybrid offence, it is considered a criminal offence that will appear on your criminal record. A federal record suspension (formerly known as a pardon) does not erase the conviction but sets it apart from other records, making it much less accessible in criminal record checks. For hybrid offences like impaired operation breath sample refusal, you may generally apply for a record suspension 3 to 5 years after completing your entire sentence, which includes any jail term, probation, fines, surcharges, and driving prohibitions, depending on whether the offence was prosecuted summarily or by indictment. The shorter waiting period usually applies to summary proceedings; the longer period applies if you were convicted by indictment. Eligibility is not automatic: you must demonstrate that you have completed your sentence, remained crime-free, and are otherwise a suitable candidate. Until a record suspension is granted, this conviction can significantly affect employment, volunteering, immigration matters, and international travel.

Related Violations

• Impaired Driving (Impaired Operation – section 320.14)
• Dangerous Operation of a Motor Vehicle
• Failure to Stop After Accident