Here are two common Fail or Refuse Charges that most people are convicted with:

• Fail or Refuse to provide a sample of breath
• Fail or Refuse to provide a sample of blood

CHARGED WITH A FAIL OR REFUSE

If a person is charged with the offence of failure or refusal to provide a breath sample or a blood sample where there was a death as a result of an accident and at the time of commission of the refusal, knows or ought to have known that their operation of the motor vehicle caused bodily harm or death the potential consequences are significantly greater than a simple fail or refuse charge.

The Criminal Code on Fail or Refuse Charges

Sections 255 (2.2) and 255 (3.2) contain the amendments to the criminal code to create these charges.

Section 255 Criminal Code of Canada

(2.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

(3.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in the death of another person, or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life.

The circumstances in this type of case are very serious. There can be a number of various defences similar to those set out on the Fail or Refuse to provide Breath or Blood sample pages herein. 

Possible defences to Fail or Refuse Charges

Below are some questions that criminal lawyers ask to find possible defences.

Was the demand proper?
Were rights to counsel given properly?
Was the instrument working properly?
Did the officer provide the proper instructions?
Did the accused knew or ought to have known that their operation of the motor vehicle caused an accident that resulted in a death?
Was there improper police conduct?
Is there a causal connection to the death?
Is there a reasonable excuse?

A conviction for this offence will result in a significant period of incarceration. A person charged with this offence should seek the assistance of legal counsel.

IF CHARGED WITH A FAIL OR REFUSE

Being charged with a “Fail or Refuse” is serious and you should speak with an expert criminal defence lawyer. Our firm has handled and won these cases all over Ontario. It is important to work with someone who knows the charges, the criminal code, and your rights.

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