The Law on Refusing a Breathalyzer in Canada
Overview of the Criminal Code of Canada – Section 320.15
Section 320.15 of the Criminal Code of Canada outlines that it is an offence to fail or refuse to comply with a lawful demand for a breath sample. This applies whether the demand is made at the roadside or at a police station using an Approved Instrument.
Legal Requirement to Comply with a Breath Sample Demand
If a police officer reasonably suspects you have alcohol in your body while operating a motor vehicle, they are legally permitted to demand a sample using an Approved Screening Device (ASD). Once the demand is made, compliance is mandatory. You are not allowed to delay, debate, or ignore the request—doing so is a criminal offence.
Refusal Treated the Same as an Impaired Driving Offence
Refusing to provide a breath sample is treated identically to being caught driving under the influence. In Calgary, a conviction for refusal can lead to:
- A $2,000 fine for a first offence
- A mandatory one-year licence suspension
- A criminal record
- Mandatory enrolment in Alberta’s Ignition Interlock Program
Multiple offences carry harsher penalties, including longer suspensions and potential jail time.
No Right to Consult a Lawyer Before Taking a Roadside Test (Approved Screening Device)
A common misconception is that you have the right to speak with a lawyer before blowing into a roadside screening device. Legally, you do not have that right. The courts have ruled that the immediacy of roadside testing is justified by the need to prevent impaired driving, which outweighs the temporary delay of legal counsel.
Specific Enforcement Practices in Calgary
Calgary has adopted a rigorous approach to combat impaired driving, integrating both federal mandates and provincial initiatives to ensure road safety.
Calgary Police Service’s Active DUI Enforcement under Alberta’s Immediate Roadside Sanctions (IRS) Program
Since December 2020, Alberta has implemented the Immediate Roadside Sanctions (IRS) program, allowing law enforcement officers to impose immediate administrative penalties on drivers suspected of impairment. This approach aims to streamline the process, reducing the burden on the judicial system while maintaining strict consequences for offenders.
Under the IRS program, if a driver fails or refuses to provide a breath sample, they face immediate penalties, including:
- An immediate 90-day licence suspension
- Vehicle seizure for up to 30 days
- Mandatory participation in educational or treatment programs
- Installation of an ignition interlock device upon licence reinstatement
Enhanced Roadside Testing and Mobile Checkpoints Across the City
The Calgary Police Service (CPS) has intensified its efforts by increasing the frequency of roadside checks and deploying mobile checkpoints throughout the city. These initiatives are particularly prominent during weekends and holidays when impaired driving incidents tend to rise.
Officers are equipped with Approved Screening Devices (ASDs) to conduct immediate breath tests. It’s important to note that drivers are legally obligated to comply with these tests, and refusal can lead to the same penalties as impaired driving convictions.
Local Data on Refusal Charges and Impaired Driving Statistics
In a recent enforcement campaign, the Calgary Police Service reported:
- 39 charges laid for failing or refusing to provide a breath sample
- 60 Immediate Roadside Sanctions issued for alcohol impairment
These figures highlight the city’s commitment to addressing impaired driving and the serious consequences of non-compliance.
Immediate Legal Consequences of Refusing a Breathalyzer
Criminal Charge: “Failure or Refusal to Comply with Demand”
Under Section 320.15 of the Criminal Code of Canada, refusal to comply with a lawful breath sample demand is a criminal charge. This charge appears on your permanent criminal record, much like an impaired driving conviction, and can significantly impact your employment, travel, and immigration status.
Immediate 90-Day Licence Suspension Under Alberta’s IRS
The IRS program imposes a mandatory 90-day licence suspension the moment you refuse a breathalyzer. This administrative action is automatic and separate from the court proceedings tied to the criminal charge.
Vehicle Impoundment (30 Days or More)
In addition to losing your licence, your vehicle will be impounded for 30 days. You are responsible for all towing and storage fees, which can add up to hundreds of dollars. This impoundment applies even if you are not the registered owner of the vehicle.
$2,000 Minimum Fine for First Offence
If convicted in court, a mandatory minimum fine of $2,000 is imposed for a first-time refusal offence. This is higher than the minimum fine for impaired driving alone and reflects the seriousness of failing to cooperate with police during an investigation.
Jail Time for Repeat Offenders or Aggravating Factors
Repeat offences or situations involving aggravating factors—such as causing an accident or having a child in the vehicle—can result in jail sentences. Judges may impose:
- Up to 30 days in jail for a second offence
- 120 days or more for subsequent convictions
- Even harsher penalties in cases involving injury or endangerment
Long-Term Effects of a Refusal Charge
Permanent Criminal Record Affecting Employment and Travel
A conviction for refusing a breathalyzer results in a permanent criminal record under the Criminal Code of Canada. This can:
- Disqualify you from certain jobs, especially in law enforcement, healthcare, government, or financial services
- Trigger background checks that negatively impact job prospects
- Restrict your ability to travel internationally, particularly when applying for visas
Increased Auto Insurance Premiums or Policy Cancellation
After a refusal charge, auto insurance providers in Alberta typically label you a “high-risk” driver. As a result:
- Your insurance premiums may double or triple
- Some insurers may refuse to renew your policy altogether
- You may need to seek coverage through high-risk providers at a significantly higher cost
Potential Denial of Entry into Countries Like the U.S.
A refusal-related criminal record may lead to inadmissibility into the United States and other countries. U.S. Customs and Border Protection officers have the authority to:
- Deny you entry at the border
- Require you to apply for a waiver of inadmissibility, which can be time-consuming and expensive
- Flag your name in their system for future travel scrutiny
Impact on Immigration or Professional Licensing for Non-Citizens
If you are atemporary resident, permanent resident, or applicant for Canadian citizenship, a refusal conviction can:
- Jeopardize your immigration status or lead to inadmissibility under the Immigration and Refugee Protection Act (IRPA)
- Delay or deny citizenship applications
- Affect eligibility for professional licensing in fields such as law, accounting, teaching, or medicine
Are There Any Valid Reasons to Refuse?
Medical Conditions or Physical Inability to Provide a Sample
Some individuals may genuinely be unable to provide a proper breath sample due to:
- Severe respiratory issues (e.g., asthma, COPD)
- Recent chest or lung surgery
- Panic attacks or other acute medical emergencies
These conditions must be documented by medical professionals and may require testimony from expert witnesses in court.
Malfunctioning Device or Improper Police Procedure
If the Approved Screening Device (ASD) or breathalyzer was:
- Malfunctioning
- Not properly calibrated
- Administered incorrectly by the officer
then the results—or the refusal—may be challenged. Police are required to follow strict protocols during roadside tests and at the police station. Any deviation can undermine the Crown’s case.
Rights Violations Under the Canadian Charter of Rights and Freedoms
Section 10(b) of the Charter guarantees your right to counsel after arrest or detention. If officers:
- Deny or delay your access to a lawyer
- Fail to clearly explain your rights
- Ignore a request for legal advice
your refusal charge may be dismissed. However, it’s important to remember that this does not apply to roadside screening, where immediate compliance is legally required without prior consultation.
Note: These Must Be Proven in Court by a Skilled Lawyer
Even if one of the above defences applies, it’s not automatic grounds for dismissal. The burden of proof lies with the defence, and these arguments must be carefully presented by a lawyer with experience in impaired driving and refusal cases. A seasoned Calgary criminal defence lawyer can:
- Gather medical or technical evidence
- Cross-examine police officers
- File appropriate Charter motions
- Persuasively argue your case before the court
How a Calgary Criminal Defence Lawyer Can Help
Assess the Legality of the Police Demand
One of the first things your lawyer will do is review the circumstances surrounding the breathalyzer demand. They’ll evaluate whether:
- The police had reasonable grounds to make the demand
- Proper procedures were followed
- The demand was made within legal time limits
If the demand was unlawful or improperly issued, any resulting refusal charge could be challenged or dismissed.
Investigate Whether Your Rights Were Violated
Your lawyer will also examine potential Charter violations, such as:
- Unlawful detention
- Denial of your right to legal counsel after arrest
- Inadequate explanation of your rights
A Charter breach may result in the evidence being excluded—or the charge being stayed altogether.
Build a Defence Strategy to Reduce or Dismiss Charges
Every refusal case is unique. An experienced Calgary defence lawyer will:
- Collect supporting evidence (e.g., medical records, video footage)
- Question the accuracy and reliability of the testing equipment
- Cross-examine police officers in court
- Argue for reduced penalties or complete dismissal, especially in cases with mitigating factors
Guide Clients Through Court Appearances and IRS Appeal Process
Refusal charges trigger both criminal court proceedings and administrative penalties under Alberta’s IRS. A defence lawyer can help you:
- Prepare for and represent you in court appearances
- File an appeal against the IRS licence suspension and vehicle impoundment
- Seek early reinstatement of driving privileges through Alberta’s Ignition Interlock Program
What To Do If You’ve Been Charged for Refusing
Here’s what you should do next:
Contact a DUI or Criminal Defence Lawyer in Calgary Immediately
Your first step should be to consult an experienced Calgary criminal defence lawyer, particularly one who specializes in impaired driving and refusal cases. A lawyer can:
- Review the circumstances of your arrest
- Advise you on your legal rights and options
- Begin building a defence strategy right away
Time is critical, especially if you plan to appeal the Immediate Roadside Sanctions (IRS).
Preserve All Documents and Note the Details of the Incident
Keep all paperwork provided by police or SafeRoads Alberta, including:
- The IRS Notice of Administrative Penalty
- Court appearance dates
- Conditions of release
Also, write down everything you remember about the incident—location, time, interactions with police, and whether you were informed of your rights. These details can be vital for your defence.
Comply with All Release Conditions and Court Dates
Failing to follow your release conditions—such as driving bans or mandatory court attendance—can result in further charges or revocation of bail. Be sure to:
- Attend all scheduled court dates
- Abide by driving suspensions or interlock conditions
- Avoid any new legal trouble during your case
Consider Appealing Your Licence Suspension Through SafeRoads Alberta
If you’ve received an IRS licence suspension, you have the right to appeal through SafeRoads Alberta. A lawyer can help you:
- Submit your appeal within the 7-day deadline
- Gather supporting evidence
- Argue procedural errors or grounds for cancellation
Note: The appeal process is entirely administrative and separate from your criminal court case.