Can You Refuse A Breathalyzer Test?

How does a breathalyzer test work?

A breathalyzer test (technically referred to as a breath alcohol test) is a procedure used by police to estimate your Blood Alcohol Concentration (BAC) by measuring the amount of alcohol in your exhaled breath. Breathalyzer testing in Ontario is regulated by the Criminal Code of Canada, section 320.31 and Ontario’s Highway Traffic Act (HTA), section 48.

It is important to distinguish between the two different types of breath tests you might encounter, as they have different technologies and legal requirements.

A breathalyzer test is a scientific procedure used by police to estimate your BAC by measuring the amount of ethanol in your exhaled breath.

Roadside test (Approved Screening Device - ASD)

This is the handheld unit an officer uses at the side of the road or at a RIDE checkpoint.

• Most roadside units use fuel cell technology. When you blow into the device, any alcohol in your breath undergoes a chemical reaction that creates an electrical current. The stronger the current, the higher the alcohol reading.
• These are screening tools, not precise measuring tools. They usually display pass, warn (0.05 to 0.079 BAC), or fail (0.08 BAC or higher).

Station test (approved instrument)

If you fail the roadside test, you are arrested and taken to the police station to blow into a much larger, table-top machine.

• These machines use infrared spectroscopy. They shoot a beam of infrared light through your breath sample. Since alcohol molecules absorb light at specific wavelengths, the machine calculates the exact amount of alcohol present based on the amount of light lost as it passes through the chamber.
• This machine provides a specific numerical reading (e.g., 110mg of alcohol in 100mL of blood).

When can a police officer administer a breathalyzer test?

Ontario courts ruled that lawful stops encompass a wide range of scenarios, including checking for proof of valid insurance, vehicle fitness, and driver’s licences. Once you are stopped for any of these reasons, the Mandatory Alcohol Screening authority kicks in immediately for the breathalyzer.

An officer can administer a roadside breathalyzer anytime you are lawfully pulled over, even without suspicion of impairment, under "Mandatory Alcohol Screening" (MAS) laws.

The key condition is that the officer must physically have the screening device with them at the time of the stop, allowing them to demand a breath sample from any driver during a RIDE program or a routine traffic stop.

An officer needs reasonable suspicion to administer Standardized Field Sobriety Tests (SFST). Reasonable suspicion includes observable factors like the smell of cannabis or alcohol, bloodshot eyes, slurred speech, or the driver admitting to recent consumption.

If an officer suspects you are under the influence of drugs (based on your pupillary response, speech, or the smell of burnt cannabis), they can demand a saliva sample using a roadside screening kit, but only when they have reasonable suspicion.

What happens if you refuse a breathalyzer in Ontario?

If you refuse a breathalyzer test, you can face:

• 90-day licence suspension: Your driving privileges are cancelled on the spot.
• 7-day vehicle impoundment: Your car is towed and stored at your expense.
• $550 administrative penalty: A mandatory provincial fine.
• $281 reinstatement fee: You must pay this to retrieve your physical card after the 90-day period.

Criminal penalties upon conviction for refusing a breathalyzer or sobriety test

If you are found guilty of failure or refusal to comply with demand, you will face federal sentencing.

• Criminal record: This can affect your current job, future employment opportunities, and your ability to travel.
• Mandatory minimum fine: For a first-time refusal, the minimum fine is $2,000.
• 1-Year driving prohibition: A court-ordered ban from driving anywhere in Canada.
• Ignition interlock: You will be required to install a breath-alcohol ignition interlock device in your vehicle for a minimum of one year after your suspension ends.

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What are the penalties for refusing a roadside sobriety test?

Refusal to take a BAC roadside test or if a drug recognition evaluator determines you are impaired can result in serious penalties. Under Criminal Code section 320.15(1), it is a criminal offence to refuse to provide a roadside SFST, breath test, or oral fluid sample.

• Minimum $2,000 fine for a first offence
• Second offence means imprisonment for a term of 30-days
• Third and subsequent offence is imprisonment for a term of 120-days

If convicted, the driver will serve a jail term of a minimum of 30-days and up to 10 years.

Under the Highway Traffic Act, a driver can also be fined:

• 90 day licence suspension
• Vehicle impoundment for 7 days
• $550 fine
• $281 licence reinstatement fee
• Mandatory treatment program
• Use of an ignition interlock device for 6 months (if it’s your third occurrence within 10 years)

How does refusing a breathalyzer test increase my insurance?

Refusing a breathalyzer test is treated by insurance companies as a serious or criminal conviction, carrying the same weight as a DUI. Because a refusal triggers an immediate roadside suspension and a criminal charge, these convictions will remain on your driver's record for a minimum of 10 years, resulting in increased insurance rates and insurers categorizing you as a high-risk driver, where premiums can spike by 100% to 300%.

Most standard providers will cancel your policy. In many cases, a refusal is actually more costly than a DUI conviction, as the mandatory legal fines are higher and the insurance surcharges are just as severe, often costing a driver tens of thousands of dollars in extra premiums over a decade.

Refusing a roadside sobriety test comes with insurance hikes and penalties

When faced with a roadside sobriety test in Canada, remember that refusal is a serious crime with penalties often exceeding those for impaired driving itself. You cannot legally refuse a lawful demand. The safest and most advisable course of action is to comply with the test and consider seeking legal advice.