Refusing to Provide Samples

NOTE: as with drivers alleged to be driving drunk, those who fail or refuse to provide samples of their breath will rarely face criminal charges today in British Columbia.  Instead, they will be subject to ‘administrative sanctions’ referred to as Immediate Roadside Prohibitions (IRPs) which carry far lesser consequences than the mandatory penalties set out under the Criminal Code of Canada.  Outside of British Columbia, refusal to provide a sample remains a serious criminal offence. 

A charge of failing or refusing to comply with a demand to provide breath samples may arise under section 254(2) or section 254(3) of the Criminal Code of Canada.


The Roadside Screening Device Test

Section 254(2) provides the police with the power to demand that a person provide them with samples of their breath where they SUSPECT that person has alcohol in their body and, within the proceeding three hours, has operated a motor vehicle.

A mere suspicion is a very low standard, but that is sufficient to authorize the demand. The suspicion usually arises based upon the smell of alcohol on a person’s breath or upon an admission of previous consumption.  The law in Canada does not require that the police making the demand first provide a person with the opportunity to speak to a lawyer.

This test is taken on a hand-held unit called an Approved Screening Device.  The test must be administered without delay.

A ‘fail’ result will provide the investigating officer with reasonable grounds to demand a breathalyzer test. 


The Breathalyzer Test

Section 254(3) provides the police with the power to demand that a person provide them with samples of their breath or, if because of their physical condition it would be impracticable to obtain a sample of breath, their blood, where they have REASONABLE GROUNDS TO BELIEVE that person is committing, or has committed within the previous three hours, the offence of having operated or having care or control of a motor vehicle while their ability was impaired by alcohol or a drug.

This section also provides the police with the power to require that the person accompany them for testing purposes.  Where this demand relates to a breath sample, the test is typically performed on a Datamaster instrument at the local police detachment.

The law requires that the police making this demand first provide a person with the opportunity to speak to a lawyer before requiring the person to provide a sample.

NOTE: Section 254(3.1) now provides further police powers for evaluation where police have reasonable grounds to believe a person’s ability to operate a motor vehicle is impaired by a drug or a combination of alcohol and a drug.

A conviction for failure or refusal to provide samples carries the identical mandatory minimum sentences that apply to those convicted of impaired driving or driving with a blood-alcohol level above 0.08.

The Criminal Code of Canada sets out the mandatory minimum penalties:

(a) for a first, offence, to a fine of not less than $1,000, and a driving prohibition of not more than three years and not less than ONE year;
(b) for a second offence, to  IMPRISONMENT of not less than 30 days, and a driving prohibition of not more than five years and not less than TWO years;
(c) for each subsequent offence, to IMPRISONMENT for not less than 120 days, and a driving prohibition of not less than THREE years.                          

For those convicted of refusal in relation to the operation of a motor vehicle which causes bodily harm to any person, the offender is liable to imprisonment for up to ten years.  Where death results, the offender is liable to life imprisonment.


1) The Professional Hockey Coach

Accused charged under the Criminal Code of Canada with refusing to provide a breath sample into a Roadside Screening Device under section 254(2). Media reports at the time had revealed that these devices could be less than reliable in some circumstances. Along with the mandatory minimum 1-year driving prohibition, a criminal conviction could jeopardize the ability to freely cross international borders necessary in this kind of professional career. With the stakes so high, Kelowna criminal lawyer Wade Jenson was retained. Wade Jenson was successful in having an earlier admission struck, and having the CHARGE DISMISSED.

2) The General Contractor

The investigating officer arrested the accused for impaired driving and advised him of his right to consult with counsel.  He then demanded, pursuant to section 254(3), that he provide the officer with samples of his breath.  Once back at the police detachment, the accused attempted to exercise his right to counsel.  When he was unsuccessful in reaching counsel of choice, herefused to provide samples and was charged under the Criminal Code.  His ability to drive was vital to his career as a general contractor.  Facing a mandatory driving prohibition of at least one year upon conviction, he retained criminal defence lawyer Wade Jenson.  Wade Jenson succeeded in having all criminal charges dismissed. No driving prohibition.