Fail or Refuse to provide a sample of breath | Toronto Criminal Lawyers
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Fail or Refuse to provide a sample of breath

We are expert lawyers in solving "Fail or Refuse" cases. Always know what your options are, and speak to us for a free legal consultation. We will tell you your options and alternatives when you are changed with a "Fail or Refuse." If you face the charge of refusing to provide a breath sample you should consult a lawyer prior to deciding whether you wish to plead guilty or take a trial. There are a number of defences available and one or more may apply to your case.

There are two types of “fail or refuse” breath sample charges.

  1. Fail or Refuse to provide a sample of breath into a roadside screening device.
  2. Fail or refuse to provide samples of breath that in the opinion of a qualified technician are necessary to enable a proper analysis of the breath to determine the concentration of alcohol in the blood.s. 254 (2) and (3) of the Criminal Code of Canada sets out the offence of fail or refuse to provide a breath sample.
1. Fail or Refuse to provide a sample of breath into a roadside screening device.

S. 254 (2) Criminal Code of Canada.

In this case if an officer finds a person operating or in care or control of a motor vehicle, or has reasonable belief that that the person has been operating or in care or control of a motor vehicle within the previous 3 hours; AND He suspects that the person has alcohol in his blood; He can demand that the individual provide a sample of breath into an approved roadside screening device.The individual must then provide a sample unless he has a reasonable excuse not to.Suspicion of alcohol in the blood is satisfied in most instances by the odour of an alcoholic beverage on the breath of the person.

Reasonable excuses are many:

  • Inappropriate conduct on the part of the officer,
  • anxiety attack
  • breathing issues etc.

Rights to Counsel:

If the roadside device is readily available there is no obligation on the part of the officer to provide rights to counsel. However, if the machine is not readily available and there is a delay, then rights to counsel must be provided. In this instance the accused must show that it was probable that he/she would have been able to reach a lawyer. (note that at Daley, Byers we offer 24/7 service – a phone call to 1877-529- 9111 will be answered at all times day or night)

Defences to the “fail or refuse to provide a breath sample charge into a roadside screening device:”

  • The demand must be proper.
  • The instrument must be prepared and operated correctly. It is important that your lawyer has and understands the requirements set out in the operating manual of the roadside device.
  • Improper guidance and instructions by the officer;
  • An honest effort was made and there was no intent not to provide a proper sample;
  • Improper operation of the instrument
  • Maintenance of the instrument
  • Improper Instructions regarding the type of sample necessary
  • Was there a legitimate suspicion of alcohol
  • Timing of the demand
  • Timing of the roadside test
  • In some cases the right to counsel
  • Reasonable excuse

There are 2 ways to commit this offence:

  1. An outright refusal (eg. I am not providing a sample)
  2. A feigned effort to blow – (fail to provide an adequate sample)

An analysis of all the facts is crucial to the strategic plan for your defence.

The results of the roadside device are divided into 3 categories.

  1. Under 50 milligrams of alcohol per 100 ml of blood is a pass.
  2. 50 – 100 milligrams of alcohol per 100 ml of blood is a warn. If an individual blows a warn, he will lose his licence for 3 days.
  3. Over 100 milligrams of alcohol per 100 ml of blood is a fail and a red light is activated. If an individual blows a fail the officer has the grounds to then demand that he/she accompany him for the purpose of providing a breath sample into an approved Breathalyzer instrument operated by a qualified Breathalyzer technician to enable a proper analysis of the breath. Normally the accused is taken to the closest police detachment with an instrument available for the purpose of providing at least 2 further samples of breath. At this stage rights to counsel are mandatory and the accused may consult with a lawyer of choice or duty counsel by telephone in private.

 

2. Fail or refuse to provide samples of breath that is in the opinion of a qualified technician

s.254(3) Criminal Code of Canada.In this instance if officer has reasonable and probable grounds to believe that the accused is operating or has the care or control of a motor vehicle (or has been operating or in care or control within the past 3 hours) while his/her ability is impaired by alcohol; or Has over 80 milligrams of alcohol per 100 ml of blood (obtained from the result of the roadside screening device); Then he can demand that the individual provide such samples of breath that are necessary, in the opinion of a qualified technician to enable a proper analysis of the breath to determine the concentration of alcohol in the blood.

This breath sample in this situation is provided into a different instrument than a roadside screening device and is usually located at a police station, not the side of the road.

In the case of reasonable belief of impairment by alcohol, there is no need for a roadside screening test. The demand is made and the accused must accompany the officer and provide the samples unless he/she has a reasonable excuse not to.

Again in these cases there are a number of defenses available some of which are:

  • Insufficient grounds for the demand;
  • Improper demand;
  • Improper guidance and instructions by officer;
  • Failure to provide proper rights to counsel;
  • Failure to operate the instrument properly;
  • Failure in maintenance of the insturment
  • Reasonable excuse not to blow (see above);
  • Inappropriate conduct on the part of the Police;
  • An honest effort was made to provide the sample (ie. Not intent to refuse or fail to provide a sample)In all fail or refuse breath sample cases you should consult a lawyer prior to deciding whether you wish to plead guilty or take a trial. This area is very technical and you may have defenses that you are not aware of.Daley, Byers, Criminal Defence Lawyers – offers free consultations.

Penalty (The Sentence)

The sentencing with respect to this offence is identical to the provisions for impaired driving.

For a first time offender the consequences will usually include:

  1. Fine
  2. Driving prohibition and licence suspension
  3. Interlock device installation restrictions on your driver’s licence
  4. Insurance consequences
  5. Criminal record
  6. For a subsequent offender Jail is often mandated and longer periods of driving prohibition and licence suspensions are imposed.

At Daley, Byers – Criminal Lawyers, we will provide you with the answers to your questions. Call for a free consultation.

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It costs nothing to talk to us. We will be able to answer your questions, explain how to attack your case and give you a fee quote. That is really what you want to know, “can I win and how much will it cost”.

Experience with fighting “Fail or Refuse” Charges

We have been successfully defending over 80, impaired driving and refuse breath sample cases for over 30 years and have literally won thousands of cases. Knowledge and experience – we have both

Costs and Payment Plans

We are not the cheapest lawyers out there, nor do we want to be. We will provide a fair competitive fee quote for the value of service rendered. We also understand that nobody plans a budget anticipating legal fees. We will try to accommodate your financial situation with a payment plan. We will work with you.


 

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