Failure or refusal to comply with a breath demand is an impaired driving charge defined under section 320.15(1) of the criminal code. The allegation is made out where an accused knows that a demand for a sample of breath has been made and then fails to comply or refuses to comply with that demand without a reasonable excuse.

The mere act of non-compliance with a law enforcement officer's demand to provide a breath sample constitutes a criminal offence under this section of the Criminal Code.

Understand Your Rights and Refusal to Blow

Alcohol Screening for Impaired Driving

Under section 320.27 of the criminal code, police officers can demand that any lawfully-stopped driver provide a preliminary breath sample to test for alcohol provided that the officer has reasonable suspicion that the driver has alcohol in their body.

Impaired Driving Oral Fluid Drug Screeners

Section 320.28 of the criminal code outlines how police can demand an oral fluid sample to detect the presence of drugs in a driver’s body only if they have reasonable suspicion that the driver has drugs in their body.

Indicators to Establish Grounds for Reasonable Suspicion

  • red eyes
  • muscle tremors
  • agitation
  • abnormal speech patterns
  • Smell of alcohol or evidence of consumption

For drug matters, the police may have grounds to demand a blood sample when the results of an oral fluid drug screening test are positive and if they notice indicators of impairment or drug usage at the scene. Get a free consultation with a DUI lawyer to better understand the circumstances that may give rise to the police having grounds to demand a blood sample.

Types of Impaired Driving Tests and Samples

In the event of a traffic stop, where the police have any reasonable grounds to believe that you operated a vehicle while impaired, the police may demand a breathalyser sample and detain you for that purpose. In the event that the police have a reasonable suspicion that you have alcohol in your blood, they may demand a breath sample for a roadside test or Approved Screening Device test.

Roadside Tests for Impaired Driving

The police may perform an initial assessment of your behaviour and examine you for any signs of impairment by alcohol or drugs.

The factors taken into account include:

  • The presence of alcohol odour on you or in your vehicle
  • Your responses to their inquiries
  • Your physical appearance
  • Your physical gestures and mobility
  • Admission of consumption of alcohol or drugs

Impaired Driving Testing at a Police Station or Medical Facility

In the event of an arrest, you will be transported to either a police station or a medical facility to facilitate the collection of additional evidence beyond what was obtained during roadside tests. Further examinations may encompass blood tests, analysis of bodily fluid samples, and a drug recognition evaluation.

Consult a lawyer by calling (855) 585-1777 to learn more about testing for impaired driving.

Refusal to Blow Penalties and Consequences

In Saskatchewan, drivers charged with a refusal to blow offence under the Criminal Code of Canada will receive an indefinite licence suspension. This suspension will persist until the charges are resolved in court.

Refusal to Blow Penalties Under the Criminal Code

Refusal to Blow Charge: Refusal to comply with demand for sample

  • 1st offence: Mandatory minimum $2000 fine
  • 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
  • 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment

Refusal to Blow Penalties Under Saskatchewan Traffic Safety Act

Vehicle Impoundment: 60 days

Safe Driver Recognition Points: Move to -20 or minimum -10

Financial Penalty: $2,250


  • 1st Offence: Driving Without Impairment (DWI)
  • 2nd Offence: Alcohol & Drug Education (ADE)
  • 3rd Offence: Addictions Assessment

Licence Disqualification:

  • 1st Offence: 1 year
  • 2nd Offence: 3 years
  • 3rd Offence: 5 years

Source: SGI

The length of the disqualification period will be determined by the number of impaired driving convictions you have under the Criminal Code within the past 10 years.

Alongside these automatic provincial disqualifications, the court reserves the authority to impose an order that forbids you from driving a motor vehicle on any public road, street, highway, or other public area in Canada for a specific duration.

Get a free lawyer consultation with a DUI lawyer to learn more about which penalties may apply in your particular refusal to blow case.

Commonly Asked Questions About Refusal to Blow Charges

Does a Valid Excuse Exist for Refusal to Blow?

If you are unable to perform a test due to an injury or illness, such as lacking sufficient breath to blow into the breathalyser, you may have a legitimate justification for refusing to provide a breath test.

Consult a lawyer to learn more.

Refusal to Blow: Should I Provide a Sample?

You are required by law to provide a sample of breath if a valid ASD or breathalyser demand is made. This stated, a lawyer can challenge the validity of the original demand in court in some circumstances.

Get a free lawyer consultation to learn more about what defences may be available for your refusal charge.

Can I Be Convicted of Refusal to Blow and Impaired Driving?

The Kienapple principle bars multiple convictions for charges stemming from a single action. This principle does not prevent someone from being convicted of both refusal to blow and impaired driving as they are considered two distinct acts.

Do I Have the Right to Consult a DUI Lawyer Before Complying With a Demand?

The answer to this question is based on the type of demand. In short, you do not have the right to speak to a DUI lawyer before providing a “roadside” breath demand into an approved roadside screening device if the demand was lawfully made. A significant delay in the demand or the actual roadside/ASD test may trigger a right to counsel.

You do have the right to speak to a DUI lawyer before providing a breath demand for a breathalyser. This also applies to instances where police make a demand for a blood sample when a person is incapable of providing a breath sample because of their physical condition or when obtaining a breath sample is not practical.

Can I Refuse to Provide a Second Breath Sample?

Police are authorized to make two breathalyser demands. Refusing to provide a second breath sample will lead to refusal to blow charges despite already providing a sample.

The Role of a DUI Lawyer in Refusal to Blow Offences

An experienced DUI lawyer can assist you in the following ways:

  • In-depth knowledge of impaired driving laws, identifying case weaknesses, and devising effective defence strategies.
  • Expertise in understanding the evidence, recognizing procedural errors, and challenging evidence admissibility.
  • Ability to identify opportunities to mitigate penalties, potentially reduce fines, avoid licence suspension or challenge the allegations at trial.
  • Strong negotiation skills to secure favourable plea deals and minimize penalties.
  • Familiarity with local courts and legal procedure, facilitating smoother navigation of the legal process based on understanding the preferences and expectations of those involved.

An experienced DUI lawyer can assist in identifying legal issues and mitigating adverse outcomes in your particular case.

Facing a Refusal to Blow Charge? Hire a DUI Lawyer

Nicholas Robinson is a DUI lawyer who is dedicated to a client-centred approach and personalized legal solutions. Please call us at (306) 585-1777 for a free initial legal consultation.

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