If you find yourself in the unfortunate situation of being asked to submit a breath sample for suspicion of driving under the influence, you do have the option of refusing to take such a test. The problem with this course of action is that the penalty for refusing is greater than the penalty for driving under the influence.
Refusing to submit to a breathalyzer if an officer suspects you have been drinking and driving carries the following penalties:
- 3 years suspended license
- Criminal record
- Minimum fine of $1000.
We asked legal experts Ticket911.ca if they ever had such a case and the reality is this occurs frequently. They were also quick to specify that officers don’t carry full breathalyzer testing devices on them but rather approved screening devices commonly called ASDs. Full breathalyzers are only administered at a police station.
Lawyer Bernard Lévy-Soussan, Co-founder and Lawyer at Ticket911.ca, gave us the example of a case he pleaded recently, whereby in 2015, a Chateauguay man got into an accident with his vehicle, damaging it heavily. When the police arrived they found the man to be avoiding them as much as possible while at the same time showing other signs of being intoxicated. Police officers having suspicions that the man was driving under the influence of alcohol, ordered him to submit to an ASD test.
After several unsuccessful attempts they placed him under arrest and he was charged with a refusal to provide a breath sample into the ASD machine.
At the trial, lawyer Bernard Lévy-Soussan was able to point out a number of inconsistencies in the officers’ testimonies. For instance, one officer said that the man was seated inside the vehicle with his legs out and the other testified he was in a different position while taking the test. There were also inconsistencies in the duration of the blow attempts and also the device readings. Lévy-Soussan also brought in a bio-chemist who testified that officers didn’t operate the machine correctly, which should have negated the results. Finally Lévy-Soussan also correctly pointed out that the machine should have shut down after three attempts but did not, further calling into question the officers’ testimony. The man was acquitted on said charge of refusing to submit a breath sample.
While this man was acquitted of the charge, the best way to avoid a similar situation is to ensure you never get behind the wheel when intoxicated in the first place.
