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DUI refusal charges, Canada

Many people are surprised to learn that it is a criminal offence to refuse to provide a breath sample to the police. When a driver is suspected of driving while intoxicated, the police will demand that he provide a sample of breath. If the suspect refuses this demand they will be charged with refusal.

Refusal carries the same penalties as a standard DUI, which include a one year Canada wide driving prohibition, a fine, and a criminal record. Refusing to give a breath sample is thus a bad idea because it guarantees you will be charged and limits your ability to defend your case in court.

You cannot challenge the accuracy of the breathalyser in refusal cases

Unlike a regular over 80 DUI case, a refusal case has no breath reading. This means the accused’s lawyer is unable to challenge the accuracy of the readings. While past defences such as the Carter defence have been reduced by legislation, there remains room to present arguments to the court that the reading is inaccurate in certain circumstances.

With no BAC reading there is less room for prosecutorial discretion

In cases where the accused’s reading is close to the legal limit (BAC .09 or BAC .1), it is often possible for a defence lawyer to convince the Crown to agree to a provincial careless driving charge and drop the DUI. This benefits the accused tremendously because they avoid a criminal record and may be able to regain driving privileges fast.

The reason Crowns are willing to do this is because if the reading is close it means the defence has a greater chance of demonstrating “reasonable doubt” to the judge that the BAC reading is accurate. There is also an acceptance that being close to the legal limit is a mitigating factor and, depending on the accused’s person circumstances and the facts of the case, the Crown may agree to simply give the accused a break.

In refusal cases, there is no BAC level. The accused is not being charged with drunk driving but simply refusing the demand for a breath sample. Since it is unknown how drunk (or not drunk) the accused was at the time of the charge Crowns often are reluctant to agree to a lesser offence.

This being said, the disclosure will often detail the police’s opinion of accused’s level of intoxication and sometimes will note the accused did not appear to be significantly impaired. This can be a benefit to the accused’s lawyer who is attempting to have the charges reduced.

Public Awareness of Refusal Charges

We often here stories of people who drink one or two beer and get charged with refusal because they were unaware of the seriousness of refusing the breath sample. While they were likely below the legal limit anyway they wind up facing the consequences of a full DUI simply because they are uninformed of the law.


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