In Canada, the offence of failure or refusal to comply with a breath demand9260, this hybrid criminal offence is usually laid when a driver, after a lawful police demand, knowingly fails or refuses to provide a breath sample for alcohol testing. Police typically make this demand when they have reasonable grounds to suspect or believe that a person’s ability to operate a vehicle is impaired by alcohol. Because of the way the law is written, a person who commits a failure refusal breath demand
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.”
This is the core wording of section 320.15(1) of the Criminal Code. In plain English, this means you commit a crime if:
- You are aware that a police officer has made a lawful demand under section 320.27 or 320.28 (for example, to provide a breath sample), and
- You either do not comply at all, or you refuse to comply, and
- You do not have a reasonable excuse for that failure or refusal.
Sections 320.27 and 320.28 are the provisions that give police officers the legal authority to demand roadside breath samples (screening devices) and evidentiary breath samples (usually at a police station or mobile breath testing unit). Once those conditions are met and the demand is properly made, the driver’s legal obligation is to comply. Simply not cooperating, delaying, pretending not to understand, or refusing outright will usually be treated as a “failure or refusal to comply with demand (alcohol).”
The law also requires that the demand be lawful. That generally means that the officer must have the legal grounds required by the Criminal Code—such as reasonable suspicion or reasonable grounds to believe impairment—depending on the type of test being demanded. If the officer lacked those grounds or did not follow the proper procedures, the demand may be invalid, and a refusal may not meet the legal definition of the offence.
Penalties & Sentencing Framework
- Offence type (severity): Hybrid offence (can proceed either summarily or by indictment).
- Mandatory minimum fine: At least $2,000 on conviction for refusing or failing to comply with a lawful alcohol demand.
- Mandatory driving prohibition: Minimum driving ban of one year on a first conviction (longer for repeat offenders, depending on provincial and federal rules).
- Criminal record: Entry of a permanent criminal record upon conviction.
- Maximum penalties: The full range of maximum penalties (both summary and indictable) are set out in section 320.15 and related impaired driving provisions. The official statute must be consulted for precise maximum terms of imprisonment and driving prohibitions.
Because this is a hybrid offence, the Crown prosecutor chooses whether to proceed by summary conviction or by indictment. Summary proceedings are generally reserved for less serious cases and carry lower maximum penalties and faster procedures. Indictable proceedings are used for more serious circumstances—such as where there is an accident, injuries, a very bad driving pattern, or a prior record—and can involve exposure to higher maximum jail terms and longer driving prohibitions. The mandatory minimum fine and driving prohibition apply regardless of whether the case is prosecuted summarily or by indictment.
The mandatory minimums reflect Parliament’s view that refusing a lawful breath demand is not a “technicality” but a serious offence that undermines the impaired driving enforcement regime. In practical terms, courts often note that if refusal carried lighter consequences than impaired driving or “over 80” offences, many drivers would simply choose to refuse. To avoid that incentive, the penalty for a failure refusal breath demand offence is designed to be at least as severe as, and often harsher than, the penalties imposed for blowing over the legal alcohol limit.
In addition to the fine and driving prohibition, judges may impose probation, conditions (such as attending alcohol education or treatment), victim fine surcharges (subject to changes in the law), and other orders. Provinces also layer on administrative consequences, such as immediate roadside suspensions, vehicle impoundment, mandatory ignition interlock programs, and licence reinstatement fees. All of this is on top of the federal criminal sentence ordered by the court.
Common Defenses
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Procedural errors by police
One of the most important lines of defence in a failure or refusal to comply with demand (alcohol) charge is to examine whether the police properly followed all required procedures. Because this offence is built on the idea that a lawful demand was made, any significant deviation from the legal requirements in sections 320.27, 320.28, or 320.15 can be fatal to the Crown’s case. For example, if an officer did not actually have the reasonable suspicion or reasonable grounds required before making a breath demand, or if they did not clearly and properly communicate the demand to the driver, the defence can argue that the demand was not lawful. Similarly, if the officer unreasonably delayed the test, failed to explain the consequences of refusal where required, or did not accommodate obvious language or comprehension issues, a court may find that the accused did not “know” that a valid demand had been made. Procedural errors can also result in violations of Charter rights (such as the right to counsel), and if key evidence is excluded because of Charter breaches, the Crown may no longer be able to prove the offence beyond a reasonable doubt.
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Technical errors in arrest procedures
Technical issues in the way the arrest and investigation are carried out can also be central to a defence. For a failure refusal breath demand charge, the Crown must prove that the accused knowingly refused or failed to comply, and that there was no reasonable excuse. If police arrest procedures are flawed—for example, if the person was not properly informed of the nature of the demand, the right to counsel, or the consequences of not complying—this may call into question whether the refusal was truly voluntary and informed. Technical errors can involve the timing and documentation of the demand, inaccuracies or omissions in police notes, or failures to preserve video or audio evidence that might show what was said and done during the interaction. In some cases, those technical deficiencies create enough doubt that the court cannot be sure the legal elements of section 320.15(1) have been met. In others, serious Charter breaches tied to the arrest may result in exclusion of statements or other evidence, weakening the prosecution’s case.
In addition to these recognized categories, the statute itself leaves space for a “reasonable excuse” defence. While the prompt research does not catalogue all such excuses, Canadian case law has recognized that genuine medical emergencies, physical inability to provide a sample, or other truly compelling, verified circumstances may constitute a reasonable excuse. The burden is on the Crown to prove that no reasonable excuse existed once some evidence of such an excuse is raised; however, this is highly fact-specific and must be assessed against the wording of section 320.15 and relevant decisions.
Real-World Example
Imagine you are driving home late at night and are pulled over at a roadside check. The officer says they smell alcohol and that your eyes are glassy. They tell you they are making a lawful roadside demand for a breath sample and direct you to blow into an approved screening device. You have had a few drinks and, worried about the result, you tell the officer you would rather not blow and simply refuse to provide the sample. The officer repeats the demand and warns you that refusal is a criminal offence, but you still decline. In this scenario, you are very likely to be charged with failure or refusal to comply with a demand (alcohol) under section 320.15(1).
From the police perspective, once they have the required suspicion or grounds and they make a proper demand, your obligation is to comply. The officer will note your words and actions and may record the interaction on in-car video. When the matter reaches court, the judge will look at whether the officer had the necessary legal grounds, whether the demand was made in accordance with sections 320.27 or 320.28, whether you knew that a demand had been made, and whether you had any reasonable excuse for refusing. Simply being afraid of blowing over the legal limit or not wanting to incriminate yourself is not a reasonable excuse in law. If the prosecution proves those elements beyond a reasonable doubt, you will be convicted and face the mandatory minimum fine, driving prohibition, and a criminal record.
Record Suspensions (Pardons)
Because failure or refusal to comply with demand (alcohol) is a hybrid offence, the rules for record suspension (pardon) eligibility depend on how the Crown proceeded in your case and what sentence you received. For Canadian record suspensions, the waiting period generally begins after you have fully completed your sentence, including any probation, fine payment, and driving prohibition. If prosecuted by summary conviction, the waiting period is shorter; if prosecuted by indictment, the waiting period is longer, reflecting the higher seriousness attached to indictable matters. During the waiting period, you must remain crime-free and meet all conditions set by the Parole Board of Canada. Once eligible, you may apply for a record suspension, but it is not automatic—the Board assesses your conduct, the nature of the offence, and the public interest. Until a record suspension is granted, this conviction will remain visible on criminal record checks and can affect employment, travel, and professional licensing.
Related Violations
- Impaired Driving
- Driving over 80 mg
- Obstructing a Police Officer