Failure to Comply with a Demand (Failure/refusal to blow)
A person who refuses to comply with a lawful demand for a breath sample or a lawful demand to perform sobriety tests in relation to a drunk driving investigation can be found guilty of the drunk driving charge of “failure to blow”.
A person convicted of this offence faces a maximum penalty of five years in jail. There is a mandatory minimum sentence of a one year driving prohibition and a $1000.00 fine. It is noteworthy that this is the same as the penalty for impaired driving and over 80 .
A charge of refusing to provide a breath sample or complying with a demand for a sobriety test is a charge that is relatively easy to prove. Because all that is necessary is to show that a person did not follow a demand, there are fewer defences to this charge.
Can I be convicted of both refusal to comply with a demand and Impaired driving?
There is a principle in law called the Kienapple principle which prevents a person from being convicted of multiple charges that happen as a result of one action. This principle does not prevent a person from being convicted of both refusing to comply with a demand and impaired driving. A person can be convicted of both because they are two different acts. Further, as failure to comply with a demand constitutes a distinct act, it will not be subsumed by the impaired driving offence.
Does a person have a right to talk to a lawyer before complying with a demand?
There are two types of demands that can be made by police during a drunk driving investigation. They are commonly called a roadside demand or approved screening device demand and a breathalyzer demand.
What constitutes a demand?
A) Roadside Demand/ Approved Screening Device Demand
The law states that a person does not have a right to speak to a lawyer before providing what is commonly referred to as a “roadside” breath demand into an approved roadside screening device (ASD) if the demand is lawfully made. This is also the case if the demand is for “roadside” sobriety tests.A person who refuses to comply with a lawfully made demand to provide a sample into an approved screening device risks being convicted of the offence of refusal to provide a breath sample.
B) Breathalyzer Demand
A person has a constitutional right to speak to a lawyer before providing a breath demand for a breathalyzer. Additionally a person has a right to be told of this right by police and assisted by police in getting a hold of a lawyer. A court can exclude evidence obtained during an investigation where a person’s right to speak to a lawyer was violated. It is rarely advisable to refuse to comply with a breathalyzer sample demand even if a person feels his/her rights have been violated.
It must be noted that police can also make a demand for a blood sample instead of a breath sample under this section. However a demand for blood can only be made when a person is incapable of providing a breath sample because of his/her physical condition or when obtaining a breath sample may not be practical.
Can I refuse to give a second breath sample if I have been cleared by the first one?
It must be noted that the law allows police to make two breathalyzer demands. Therefore a person who refuses to provide a second breath sample can be found guilty of refusal to provide a sample even though one sample had been provided.
What if I voluntarily change my mind after refusing to give breath samples?
If a person refuses to comply with a breath demand and then changes his/her mind at a later time, s/he can still be convicted of refusing to provide a sample. However if the crown cannot prove that the refusal was final and absolute this may be used a defence.
What are some defences to the charge of Refusal to comply with a breath/blood sample demand?
Violation of a Charter right – If any of a person’s rights under the Charter of Rights and Freedoms , are violated a court may exclude any evidence that is obtained in an investigation. A more common defence used to defend the charge of failure to comply with a demand is arguing that a person’s right to speak to a lawyer was violated.
Grounds for demand –There are many requirements that a police officer needs to follow before s/he can make a demand for a breath sample, blood sample or sobriety test. One of the requirements is that s/he have reasonable ground to believe a person has consumed alcohol while driving or that that person has broken the law depending on the type of demand that is made. If an officer does not follow the requirements necessary for a proper demand, a court may rule that the evidence cannot be included in the trial.
Blood Sample Demand – If a police officer makes a demand for a blood sample instead of a breath sample without a lawful reason, a court will not accept the evidence obtained by the sample.
Physical Impossibility – A person cannot be convicted of the drunk driving offence of failing to comply with a demand if a court accepts that it was physically important for the person to so or that providing a sample would have endangered the person’s health for medical reasons.
Take the Next Step
Lakin Afolabi is a lawyer in London, Ontario. He has obtained multiple “not guilty” verdicts for people whose breathalyzer results were over the legal limit. If you or someone you know is charged with the drunk driving offence of failure to comply with a demand, he can provide you with a thorough defence. Call him now for a consultation.