Failure or Refusal to Provide a Breath Sample Charge in Winnipeg

What is Failing or Refusing to Provide a Breath Sample?

Failure or Refusal to provide a sample is a criminal offence.Under the Criminal Code of Canada, the police have the authority to ask you to provide a roadside breath-screening sample, a breathalyzer sample, and a blood or urine sample if they suspect you have alcohol in your system while you are driving or in control of a motor vehicle. If you don’t successfully provide a sample when demanded by the police, you will be charged with failure or refusal. Often times, the police will also charge you with impaired driving.

In addition to these criminal charges, the police will suspend your driver’s licence for three months and your driver’s rating on the DSR scale will be decreased by five points. In order to have your licence reinstated after the suspension period, you have to complete an addictions assessment with the Addictions Foundation of Manitoba (AFM).

In order to be convicted of failure or refusal to provide a breath sample, the Crown Attorney needs to prove the following beyond a reasonable doubt:

  1. a proper demand was given and understood;
  2. the accused failed or refused to provide a breath sample;
  3. the accused intended to fail or refuse to provide a breath sample; and,
  4. there was no reasonable excuse for why the accused failed or refused to provide a breath sample.

Sentencing for Failing or Refusing to Provide a Breath Sample

As with impaired driving and driving over .08, the penalties for failing or refusing to provide a breath sample are just as serious. The maximum jail sentence is five years. There are minimum sentences as follows:

• A minimum fine of $1000 and a one year driving prohibition for a first conviction.
• A mandatory minimum jail sentence of 30 and a two year driving prohibition for a second conviction.
• A minimum jail sentence of 120 days and a three year driving prohibition for subsequent convictions.

In addition to the criminal driving prohibition, you will also be suspended from driving for two year by the registrar of motor vehicles.


Defending Failure or Refusal to Provide a Breath Sample Charge

With the complexity of most impaired driving offences, there are numerable issues that can arise in any case. I will review your case focusing on your interactions with the police before and during the sampling process. Depending on your specific circumstances, a number of different defences may be available.

The assessment always begin with asking whether the police had the legal grounds to make a demand for a breath sample. Without a lawful reason to make a demand for a breath sample, the accused is entitled to refuse to provide a sample. The availability of this defence is always case specific and dependant on the facts.

If the police have the grounds to demand a breath sample, the defence lawyer will then have to assess your reason for failing or refusing to provide a sample. A lawful excuse to failing or refusing to provide a sample fall into two categories: unintentional and intentional.

Unintentional Reasons For Failing or Refusing to Provide a Breath Sample

There have been a number of successful arguments raised in circumstances where the accused’s failure or refusal to provide a sample was outside of their control. These have included:

  1. the accused was not driving and had no intention to drive;
  2. unintentionally failing the breath test;
  3. the approved screening device or breathalyzer was not functioning properly;
  4. the accused failed to understand the breath demand instructions;
  5. the refusal was not unequivocal; and,
  6. medical reasons.
Intentional Reasons For Failing or Refusing to Provide a Breath Sample

If you intentionally failed or refused to provide a breath sample, you must establish a reasonable excuse in order to avoid conviction. The courts have accepted the following excuses as reasonable:

  1. mental health grounds;
  2. medical reasons;
  3. the accused being denied the right to consult with a lawyer prior to providing the breath sample;
  4. the police lacked the grounds to make the breath demand;
  5. the approved screening device or breathalyzer was not functioning properly; and,
  6. there was an unreasonable inconvenience in providing a breath sample.

Related Impaired Driving Topics

  1. When can the police pull me over?
  2. What is the Licence Suspension Appeal Board?
  3. What is the true cost of an impaired driving conviction?

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