Consequences of Failing a Breathalyzer

Most people already know what a breathalyzer is when they hear the word, but in case someone doesn’t, it is a device used to measure a person’s blood alcohol content (BAC). Police officers most commonly use the devices when they pull a driver over to test if they are over the BAC limit, and there are serious consequences to failing a breathalyzer.

Once you have been pulled over by a police officer and blown into an Approved Screening Device (ASD), if you blow 0.10 or higher, the result of the test will come up as a ‘Fail.’

If you do blow a ‘Fail,’ then from this moment, there are two different consequences that you could potentially face, and it is entirely up to the police officer which one they want to pursue. It could either be a criminal charge or an administrative prohibition under the BC road laws.

Certain factors come into play when a police officer is deciding which route to move forward with. Usually, if you don’t have a previous DUI or drunk driving charge, the police officer won’t pursue criminal charges. Policing factors also come into play, so resources available are a variable that comes into play for a police officer deciding which route to take.

Criminal Charge

In the case where a police officer decides to move forward with criminal charges, you will be arrested and read your rights, one of those being that you have the right to speak to a lawyer. Then, you will be transported to a police station, where you will be required to take another breath test.

When you arrive at the police station, you will be informed of your rights again, and while in the station, you will be allowed to speak with a lawyer over the phone. It is important to understand that refusing to comply with a lawful demand to provide samples into a breathalyzer is a criminal offence.

You will take a breath test as soon as possible; however, this breath test will be taken with an Approved Instrument which means the results of this test can be used in court to build a case against you.

While in the police station, you will undergo two observation periods and two breath tests. At the end of the testing, if your results are at or over 80 mg% of alcohol in your blood, and the tests are no more than 20 mg% apart, they will be considered reliable, and you will likely be charged with a criminal offence.

At this point, you will be released after signing a promise to appear in court. You will also be handed an Administrative Driving Prohibition (ADP), resulting in your license being seized, and you will be prohibited from driving.

If you do not show up to court on your assigned date, there will be a warrant out for your arrest. An ADP can be challenged as long as you file the challenge within seven days of being handed the driving prohibition.

IRP

Now, let’s go back to when you first blow a ‘Fail’ on the side of the road and imagine the officer decides to pursue administratively. The steps that follow differ from a criminal charge case.

If the officer, for whatever reason, decides not to pursue criminal charges, they will hand you an Immediate Roadside Prohibition (IRP). An IRP begins immediately when it is handed down and includes a 90-day driving prohibition, a $500 fine, an impounded car, and your license seized. You will also be responsible for getting your vehicle back at your own expense, as well as a license reinstatement fee, and you will also be required to take a course that costs about $1000 after you have served your IRP.

After you get handed an IRP, just like with an ADP, it is important to remember you only have seven days to file and dispute it, so get in contact with a lawyer ASAP to ensure you have the best chance of fighting the prohibition.