This is one of the most common questions people ask after a DUI stop in BC: “Should I just refuse to blow?” The short answer is no. And the longer answer is still no, but it’s worth understanding exactly why.
The idea that refusing a breath test somehow helps you is a myth that gets people into serious trouble. Refusing a lawful breath demand is a criminal offence under the Criminal Code of Canada. It carries minimum penalties of a $2000 fine and a one-year prohibition. It can also trigger a 90-day Immediate Roadside Prohibition under the Immediate Roadside Prohibition scheme.
And in practice, refusals can often be harder to defend than impaired driving charges. There’s not a lot of wiggle room if you just say “no.”
The Two Types of Breath Demands in BC
It’s important to distinguish between the different types of breath demands, because the rules around each are slightly different.
The first is an Approved Screening Device (ASD) demand at the roadside. An officer can demand a roadside ASD test based either on a reasonable suspicion or just because they want to. If they have an ASD or they have a suspicion, they can demand a roadside sample. You must comply. This is an on-the-spot device, and refusal here triggers provincial consequences in addition to potential criminal liability.
The second is a demand at the police station for samples into an Approved Instrument. This is a more sophisticated device used for evidentiary purposes. This demand comes after an arrest, when police have reasonable grounds to believe you were impaired. The ASD is often used to give them those grounds, but it is not required.
Refusal at this stage is unambiguously a criminal offence.
What Happens If You Refuse
Refusing a roadside ASD demand typically results in an Immediate Roadside Prohibition for a first incident. The consequences are the same as if you’d blown “Fail.” You’ll be prohibited from driving, your car will be impounded, and you’ll face significant monetary penalties.
Refusing an evidentiary breath demand at the detachment is a Criminal Code offence. Under current Canadian law, the minimum penalties for refusal are a $2,000 minimum fine for a first offence, escalating to mandatory jail time for subsequent offences. You’ll also receive a driving prohibition and could be required to participate in the Ignition Interlock Program.
Why Refusal Is Often Harder to Defend
Here’s something most people don’t consider: an impaired driving charge based on a breath reading gives your defence lawyer something to work with. Breath machines malfunction. Samples get taken improperly. There are constitutional rights around the timing and manner of the demand. These are all live issues in court.
And in a criminal case, Charter issues can be raised to defend against the samples even becoming admissible. But if there’s no evidence to have thrown out, breaches of your rights become much less significant.
A refusal charge, by contrast, is usually simpler for the Crown to prove. The question becomes: was there a lawful demand, and did you refuse? If the answer to both is yes, there’s not much to argue. The usual defences of challenging the accuracy of the machine, the officer’s grounds, the proper administration of the test simply don’t apply when you didn’t blow at all.
The Exception: Refusing an Unlawful Demand
There is one narrow situation where declining to provide a breath sample might be legally defensible: if the demand itself was unlawful. If an officer had no reasonable suspicion to make an ASD demand, was not in possession of an ASD, or no reasonable grounds to demand evidentiary samples, a refusal might not constitute an offence. But this is a legal argument that needs to be made in court and is based on a whole host of factors you could not identify roadside on your own. It’s not a decision you should try to make on the side of the road based on your own judgment.
Bottom Line
Blow when demanded. Protect your right to speak to a lawyer first after a demand for samples on an Approved Instrument, but don’t refuse the test itself. If there are grounds to challenge the legality of the demand or the reliability of the result, those arguments are far better made by a lawyer in court than by you on the side of a highway.
If you’ve already refused and you’re reading this trying to figure out what to do next: talk to a lawyer immediately. There may still be avenues available depending on the specific circumstances of your case.