“I tried. I really did.” That is often the first thing people say after being charged with refusing a breath sample. Very few of them stood at the side of Steeles Avenue and flatly said no. They blew too softly, stopped too early, asked to call their lawyer first, felt panicked, or told the officer they had asthma. Then they received a form saying their licence was suspended and a charge that carries the same maximum penalty as impaired driving.
Section 320.15 of the Criminal Code covers both failing and refusing to comply with a demand. For many people, that word “failing” is the surprise. An officer doesn’t have to hear a refusal for the charge to be laid. What’s at issue may be a series of attempts that the officer believes weren’t genuine, recorded on video and shown later in a Brampton courtroom.
The article below is general information rather than legal advice. If you’ve been charged, your lawyer will need to look at the demand, the video, and the medical picture in your own case.
The Offence Is Separate From Being Over the Limit
A refusal charge doesn’t depend on how much you drank. The Crown doesn’t need to prove that you were impaired or over 80. A person with nothing in their system can in theory be convicted for failing to comply with a lawful demand, and that’s why the charge is not a “way around” a breath reading.
Section 320.15(1) makes it an offence, knowing that a demand has been made, to fail or refuse to comply with it without reasonable excuse. So the Crown’s case usually breaks down into these pieces:
- A demand was made under section 320.27 or section 320.28.
- You knew the demand had been made.
- You failed or refused to comply.
- There was no reasonable excuse.
A demand isn’t limited to a roadside screening device. It can be a demand for samples at the station on an approved instrument, a blood demand, a physical coordination test, or an evaluation by a drug recognition expert. Drug-related demands are covered too, so “refusal” isn’t only an alcohol matter.
What Makes a Demand Valid
Since this offence relies on a demand under the Code, the demand itself can be examined. At the roadside, an officer who has lawfully stopped a driver and has an approved screening device on hand can demand a sample without any suspicion of drinking. That’s mandatory alcohol screening, in section 320.27(2). A different route, in section 320.27(1), depends on reasonable suspicion that the person has alcohol or a drug in their body. A demand for evidentiary samples at the station, under section 320.28, requires reasonable grounds to believe the person has committed an impaired or over-80 offence.
Other features can raise legal issues. Was the demand clear? Was it in a language you understood? Was the person actually operating the vehicle, or in a position covered by the Code? For screening demands, the law requires a sample to be provided immediately. The Supreme Court of Canada addressed this in R. v. Breault, 2023 SCC 9, in which the Court held that a demand was not valid where the device wasn’t immediately available and there were no unusual circumstances to justify the delay. Those arguments are fact-specific, and whether one helps depends on what the record shows.
How “Failing” Happens in Practice
An instrument needs a sustained breath of a certain strength and length. If a person stops too early, blows around the mouthpiece, or sucks in instead of blowing out, the device may not register a sample. After several attempts, the officer may warn the driver and then lay a charge.
The evidence of this can be fairly detailed. Officers may record how many attempts were made, how the person’s cheeks looked, whether air was heard escaping, and the instructions given. At the station, the breath room is commonly video recorded, and that footage is often the best evidence for either side. A court will consider whether the person seemed to be trying, whether the instructions were understandable, and whether the instrument was working properly. Roadside attempts may be captured by in-car or body-worn cameras, but not always completely, and there may be gaps.
If you’ve been charged, request that the video be preserved. Your lawyer will normally ask for it as part of disclosure, and watching it may reveal details no one wrote down.
Excuses That Usually Don’t Work
“Reasonable excuse” is an actual defence, but courts have treated it narrowly. Some explanations come up again and again and tend to go badly:
- “I wanted to talk to my lawyer first.” At the roadside, the right to counsel is generally suspended during a screening demand because of the need for immediacy. At the station, you do have the right to speak to a lawyer, and you should use it. But once you’ve had a reasonable chance, you can’t hold off indefinitely by continuing to wait for a particular lawyer.
- “My lawyer told me to refuse.” Advice from anyone doesn’t turn a refusal into a reasonable excuse. A good lawyer would not advise you to commit an offence.
- “I was scared.” Anxiety alone is usually not enough, though a documented anxiety or panic condition with a real physical effect is a different conversation.
- “I hadn’t been drinking anyway.” Innocence of drinking isn’t an excuse for not providing a sample.
- “I didn’t believe the device was clean or the officer was fair.” Concerns of that kind should be raised, but they rarely justify non-compliance unless there’s something more.
When There’s a Real Medical Problem
Genuine physical inability can amount to a reasonable excuse, and it’s sometimes also relevant to whether there was a failure at all. Severe asthma, COPD, a recent chest or facial injury, or an acute panic attack could all interfere with a person’s ability to blow. What matters is evidence. A vague mention made for the first time months later is unlikely to persuade a court.
If you truly can’t provide a sample, tell the officer at that moment and explain why. Ask whether you could provide one in another way, including a blood sample, if the officer is willing to consider it. As soon as you are released, see a doctor. Get written records of your condition and medications, including an old prescription for an inhaler, and any note of a respiratory test. A medical expert may need to give evidence about whether someone with your condition could have managed the required breath, and that kind of evidence is best gathered early.
The accused typically has to point to evidence supporting the excuse, so this is one defence where preparation matters a great deal.
The Roadside Consequences Come First
Ontario’s penalties don’t wait for trial. If you’re stopped and you fail or refuse to comply with a demand, the Ministry of Transportation lists these immediate consequences for all drivers: a 90-day licence suspension, a seven-day vehicle impoundment, and a $550 penalty. Mandatory education or treatment is also required, with more for repeat occurrences, and a third occurrence can bring an ignition interlock condition.
Your vehicle might be towed from where you were stopped, with costs paid by you, even if you’re borrowing it. Someone else’s car or a company van can be affected. A family member or employer may want an explanation very quickly.
These administrative consequences are separate from the criminal case. Winning or losing in court generally operates on another track, and the deadlines and appeals for the administrative suspension are limited. Ask about them right away.
What a Conviction Means
A conviction under section 320.15(1) can be prosecuted by indictment or summarily. The penalties look like this:
| Offence | Minimum |
|---|---|
| First offence | $2,000 fine |
| Second offence | 30 days in jail |
| Third or later offence | 120 days in jail |
The maximum is 10 years on indictment, or two years less a day and a $5,000 fine on summary conviction. Compare the $2,000 minimum with the $1,000 minimum for an ordinary first impaired or over 80 conviction, and you can see why refusing rarely looks like a smart move. Because there’s a minimum punishment, a discharge isn’t available under section 730.
The sentencing court must also make a driving prohibition order. It runs for at least one year and up to three years for a first offence, at least two and up to 10 for a second, and at least three for later offences. Separately, Ontario applies its own licence suspension after a criminal conviction. The province lists at least one year for a first conviction, along with a mandatory education or treatment program and an ignition interlock for at least a year. Periods are longer for repeat convictions. Ontario changed some impaired driving rules effective July 1, 2026, so check the current Ministry of Transportation rules for how interlock and reinstatement apply to you.
The stakes are higher again if there was a collision. Under sections 320.15(2) and (3), refusing while knowing or being reckless about whether you were in an accident that caused bodily harm or death brings far heavier maximums, up to life imprisonment where someone has died.
Why Brampton Drivers Feel This Differently
Many people in Brampton earn their living on the road. Truck drivers, couriers, ride-hailing drivers, and sales staff can all face immediate job loss once their licence is suspended, and a commercial licence holder may also have to deal with employer policies, insurance, and the carrier’s safety record. A person with a truck driving job that takes them across the U.S. border has another problem: a criminal conviction could complicate entry to the United States, even years later.
Non-citizens should be particularly careful here. Because the maximum for this offence is 10 years, a conviction can count as serious criminality under the Immigration and Refugee Protection Act, even when the Crown proceeded summarily. For a permanent resident, that could mean a removal risk. For someone on a work permit or an application for permanent residence, it could end the path entirely. Get immigration advice before any plea, including a plea to what seems like an easy way out.
Whatever your job or status, the way the charge ends matters. A refusal can sometimes be resolved by trial, or by discussions with the Crown about a different outcome where the evidence has weaknesses. In some cases, a plea to a different driving charge may be raised. Peel Crown offices follow provincial policies on impaired driving matters, and they don’t always have the discretion that people imagine. Nobody can promise a particular result, and it’s unwise to accept any offer before your lawyer has reviewed the disclosure, including the video.
Practical Steps After a Refusal Charge
Write down everything you remember about the stop as soon as you can, including what the officer said, any request you made for a lawyer, and what was happening with your breathing. Address that note to your lawyer. Get medical records if your health is involved. Keep the suspension and impound documents, and the release papers with your court date. Don’t drive during the suspension, as doing so creates further charges, and your first appearance date at 7755 Hurontario Street must be kept.
If you’re stopped in future, remember the plain lesson: when a police officer makes a breath demand, the offence is in not complying. Raise concerns, say you want a lawyer at the station, and tell the officer about any medical limits, but try to provide the sample.
The firm’s page on impaired driving and DUI matters has more on these cases. To speak with someone about a refusal charge, you can contact Sawan Law House LLP.