Charged With Refusing a Breathalyzer in Alberta? What Happens Next

Being accused of refusing a breathalyzer in Alberta can feel overwhelming. There may be a roadside licence suspension, a seized vehicle and a court date, all at once. This guide explains the law, the court process in Alberta, the possible penalties and your options. Remember that anyone charged is presumed innocent until the Crown proves its case.

What a refusing a breathalyzer charge means

The offence is set out in section 320.15 of the Criminal Code. It is often called a "refusal to blow", but it covers more than breath. It applies when police make a lawful demand and the person, without a reasonable excuse, fails or refuses to comply. Demands can include:

• a breath sample into a roadside approved screening device;
• physical coordination tests (roadside sobriety tests);
• an oral fluid sample for a drug screening device;
• breath samples into an approved instrument, usually at the police station;
• a drug recognition evaluation by a trained officer; or
• a blood sample.

The demands themselves come from sections 320.27 and 320.28. A roadside demand can be based on reasonable suspicion that you have alcohol or drugs in your body, or, for breath screening, it can be a mandatory alcohol screening demand made during a lawful stop, even without suspicion. Station demands require reasonable grounds to believe an impaired driving offence was committed in the previous three hours.

What the Crown must prove

The Crown (the prosecutor who acts for the public) generally has to prove, beyond a reasonable doubt, that:

• a police officer made a valid, lawful demand;
• you knew the demand had been made;
• you failed or refused to comply, for example by saying no, or by not providing a suitable sample; and
• you intended to fail or refuse.

If there is evidence of a reasonable excuse, such as a genuine medical inability to provide a sample, that becomes a central issue at trial.

Offence type

The basic refusal offence in s. 320.15(1) is a hybrid offence. The Crown chooses to proceed either by summary conviction (less serious) or by indictment (more serious). More serious versions apply where you knew, or ought to have known, that you had been in an accident causing bodily harm (s. 320.15(2)) or death (s. 320.15(3)). Our national guide to failure or refusal to comply with a demand covers the law across Canada.

What happens after a refusal charge in Alberta

At the roadside

In Alberta, a refusal usually triggers the provincial Immediate Roadside Sanctions (IRS) program, in place since December 2020. IRS sanctions can include fines, a licence suspension and vehicle seizure. These are administrative penalties under provincial law and are reviewed by SafeRoads Alberta, not by a criminal court. Police may deal with some cases through IRS alone, while others also lead to a criminal charge under s. 320.15. The two processes run separately.

Arrest and release

If you are charged, police often release you the same day. You may get an appearance notice, or sign an undertaking, which is a written promise to attend court and follow any listed conditions. In more serious cases, such as a crash causing injury, police may hold you for a bail hearing, where a justice can make a release order with conditions. Conditions may include not driving, not consuming alcohol, or not contacting certain people. Breaking a condition is a separate criminal offence, so read them carefully.

Who decides on charges in Alberta

In Alberta, police lay the charge. The Alberta Crown Prosecution Service then reviews the file and decides whether to continue, change or withdraw the charge.

First appearance

Your first appearance is normally in the Alberta Court of Justice (called the Provincial Court until 2022), for example in Calgary, Edmonton or the community where the stop happened. Nothing is decided about guilt at this stage. It is mainly about getting disclosure and arranging next steps. A lawyer or agent can often appear for you.

Disclosure

Disclosure is the evidence the Crown must give you, such as officer notes, dash or body camera video, booking video and screening device records. Your lawyer uses it to assess the case.

The Crown's election and choice of court

If the Crown proceeds summarily, the case stays in the Alberta Court of Justice. If it proceeds by indictment, you can usually choose a trial in the Alberta Court of Justice or in the Court of King's Bench, with a judge alone or a judge and jury. Cases involving bodily harm or death are more likely to go to the Court of King's Bench.

Resolution or trial and timeline

Many cases end through a negotiated resolution, a withdrawal, or a trial. Simple cases may take several months; complex ones longer. Under the Supreme Court's Jordan decision, delay is presumed unreasonable beyond 18 months for cases in provincial court and 30 months for superior court, subject to exceptions and delay caused by the defence.

Possible penalties for refusal to blow

Refusal is punished at least as seriously as driving over the legal limit. The mandatory minimum penalties in the impaired driving regime were not removed by Bill C-5 (2022), but sentencing law continues to evolve, so confirm the current position with a lawyer.

What sentences can look like in practice

• Absolute or conditional discharge: a discharge means a finding of guilt without a conviction. Because refusal carries a mandatory minimum, a discharge is generally not available.
• Fine: for a first offence, a fine of at least $2,000 is common, plus a victim surcharge.
• Driving prohibition: always imposed on conviction. Depending on provincial ignition interlock rules, you may be able to drive during part of the prohibition with an interlock device.
• Probation: can be added, with conditions such as counselling.
• Conditional sentence: a jail term served in the community. It is not available where a minimum jail term applies, as for second and later offences.
• Jail: mandatory for repeat offences and likely where someone was hurt or killed.

The Criminal Code also allows a court, with the Crown's consent, to delay sentencing so a person can attend a provincially approved treatment program. If completed, the minimum punishment and prohibition may not be required. Ask a lawyer whether this is possible in your case in Alberta.

Factors that matter

Courts look at prior impaired driving convictions, whether there was a crash or injury, the manner of driving, any passengers (especially children), your conduct with police, and your personal circumstances. Driving while prohibited is a separate, serious offence.

Other consequences in Alberta

Licence measures

The IRS sanctions (fines, licence suspension and vehicle seizure) can apply right away, before any court case. Deadlines to seek a review by SafeRoads Alberta are short, so get advice quickly. A criminal conviction then brings the Criminal Code driving prohibition on top of any provincial measures.

Criminal record and record suspension

A conviction creates a criminal record. You can apply to the Parole Board of Canada for a record suspension (formerly a pardon) 5 years after completing your sentence for a summary conviction, or 10 years for an indictable conviction.

Travel to the United States

US border officers make their own decisions. A conviction, particularly repeat or serious driving convictions, can lead to questioning or refused entry. Get advice before travelling.

Immigration for non-citizens

Since the 2018 reforms raised maximum penalties, impaired driving offences, including refusal, can make permanent residents and foreign nationals inadmissible to Canada for serious criminality. If you are not a citizen, speak with both a criminal lawyer and an immigration lawyer before resolving your case.

Employment and insurance

Jobs that involve driving, commercial licences, professional licensing and security clearances can be affected. Insurance costs may also rise.

Common defences and issues a lawyer will look at

Every case depends on its facts. A lawyer reviewing a refusing a breathalyzer charge will often examine:

• Validity of the demand: did the officer have the required suspicion or belief, or, for mandatory screening, was there a lawful stop and a screening device on hand?
• Timing: roadside demands must be complied with immediately, and police must act promptly too.
• Was it a refusal? Confusion, a language barrier, injury, or a quick change of mind can all matter.
• Reasonable excuse: genuine medical conditions, physical inability or faulty equipment.
• Instructions: whether you were clearly told how to provide a sample and warned of the consequences of refusing.
• Charter s. 8 (unreasonable search) and s. 9 (arbitrary detention): whether the stop, detention and demand were lawful.
• Charter s. 10(b) (right to counsel): the right is generally suspended during a brief roadside screening, but before a station breath or blood demand, police must tell you of your right to a lawyer and give you a reasonable chance to speak to one.
• Operation or care and control of the vehicle, and identity of the driver.

How common is this charge in Alberta?

According to Statistics Canada police-reported data (table 35-10-0177, failure or refusal to comply with an alcohol demand), Alberta recorded 486 incidents in 2025, a rate of 9.66 per 100,000 people, with 134 persons charged. The Canada-wide rate was 9.29. Refusals involving drug demands are counted separately.

The 2018 figures are low because the current offence only took effect in December 2018. Alberta's rate peaked in 2019 and has generally declined since 2022, though it remains slightly above the national rate. Since 2021, far fewer persons have been charged than incidents recorded. That gap may reflect cases handled outside the criminal courts, such as through the IRS program. See more on our Alberta crime statistics page and in Alberta crime news.

If you are the victim or complainant

Most refusal cases have no direct victim. But if you were hurt in a crash, or lost a loved one, the case affects you deeply. You can report what happened to police and give a statement. Police investigate, and the Alberta Crown Prosecution Service decides how to prosecute.

Alberta victim services units can provide information, court support and referrals. You can usually ask to be kept informed, prepare a victim impact statement for sentencing, and request restitution for financial losses.

If you have safety concerns, the court can include no-contact conditions in the accused's release or sentence. A peace bond under s. 810 of the Criminal Code is a court order requiring someone to keep the peace and follow conditions, and can be sought where there are reasonable fears for your safety. The Crown does not act as your personal lawyer, so you may want your own legal advice, for example about insurance or a civil claim.

When to speak with a lawyer

Speak with a criminal lawyer as early as possible, ideally before giving any statement to police and before your first appearance. Early advice helps with release conditions, IRS review deadlines and preserving evidence such as video. If you cannot afford a lawyer, contact Legal Aid Alberta to ask whether you qualify.

People charged can request a free, confidential first consultation through an independent criminal defence lawyer at our consultation page, and victims can do the same through our victim consultation page.

This guide is general information, not legal advice. The law and your situation may differ, so speak with a qualified lawyer about your case.

Frequently asked questions

Is refusing a breathalyzer worse than blowing over in Alberta?

In many ways it is treated just as seriously. Refusal under s. 320.15 carries the same maximum penalties as driving over the legal limit, and the minimum fine for a first refusal is $2,000, which is higher than the minimum for lower blood alcohol readings. A conviction also brings a mandatory driving prohibition. In Alberta, a refusal can also trigger Immediate Roadside Sanctions, including a licence suspension and vehicle seizure.

What is the minimum penalty for refusal to blow in Alberta?

For a first offence, the Criminal Code minimum is a $2,000 fine plus a driving prohibition of at least one year. A second offence carries at least 30 days in jail, and a third or later offence at least 120 days. These minimums apply whether the Crown proceeds summarily or by indictment. Provincial IRS sanctions in Alberta are separate and can apply before any court case.

Can I get a discharge for refusing a breathalyzer?

Generally no. Absolute and conditional discharges are not available for offences with a mandatory minimum punishment, and refusal has one. However, the Criminal Code allows a court, with the Crown's consent, to delay sentencing so a person can attend a provincially approved treatment program, which may affect the minimum penalty. A lawyer can tell you whether this route may be possible in your case.

Can I challenge an Immediate Roadside Sanction for refusing in Alberta?

Yes. Immediate Roadside Sanctions for refusals, which can include fines, licence suspension and vehicle seizure, are reviewed by SafeRoads Alberta. The review is separate from the criminal case in the Alberta Court of Justice. Deadlines are short, so get advice quickly. What you say in the review could matter to your criminal case, which is another reason to speak with a lawyer first.

Will a refusal conviction affect travel or immigration?

It can. A conviction creates a criminal record, and US border officers may question or refuse entry, especially with repeat offences. For non-citizens, impaired driving offences including refusal can lead to inadmissibility to Canada for serious criminality. You can apply for a record suspension 5 years after completing a summary sentence or 10 years after an indictable one. Get immigration advice before resolving your case.

Do I need a breathalyzer refusal lawyer in Alberta?

It is strongly recommended. Refusal cases often turn on technical questions: whether the demand was lawful, whether you truly refused, and whether your Charter rights were respected. A criminal lawyer in Calgary, Edmonton or elsewhere in Alberta can review disclosure, advise on IRS review deadlines and explain your options. If cost is a concern, ask Legal Aid Alberta whether you qualify, or request a free first consultation through Crime Canada.