Refusing or failing to provide a roadside breath test is a criminal offence under section 254 of the Criminal Code of Canada. Most criminal charges for this offence result not from an outright refusal to provide a sample, but rather from failure to provide an adequate breath sample. There are numerous reasons why you might fail to provide an adequate sample for a roadside breath test, ranging from intentionally not blowing into the breath test machine correctly, to being physical unable to provide a suitable breath sample despite trying to do so. The reasons for failing to provide a breath sample may determine whether a legal defence is available to you, including whether you had a reasonable excuse.
Before You Raise a Defence, the Crown Attorney Must Prove Its Case
The Crown Attorney must prove beyond a reasonable doubt all of the elements of the offence. The physical element (actus reus) requires that the Crown Attorney prove (1) that a proper demand for a breath test was made by a police officer, and (2) that you failed to comply with the demand. Whether a police officer had reasonable suspicion to form the basis for a proper demand is discussed in my previous article on this topic. The second part of the physical element, the refusal, can be either an expressed refusal or a failure to provide an adequate sample. Our courts have been clear that the totality of the circumstances of the event will determine whether a person has failed to provide a sample, which includes both the conduct of the accused and the officer.
The mental element (mens rea) of refusing to provide a breath sample has been debated on more than one occasion. More specifically there has been debate whether this offence requires specific intent or general intent. However recent decisions seem to suggest that our courts are satisfied that the Crown Attorney only needs to prove general intent on the part of the accused. This would mean that the Crown Attorney would not need to prove that you were intentionally trying to avoid providing an adequate breath sample. Under general intent, the Crown Attorney would only have to prove that you had knowledge or awareness that you had failed to provide a breath sample.
Defending Failing to Provide a Breath Sample Charges
There may be one or more defences available to you if you have been charged with refusing to provide a roadside breath sample.
A commonly raised defence is that the person was physically unable to provide a breath sample. A physical inability to provide a sample may be the result of a recent or ongoing medical condition. In order to get an adequate breath sample, you are required to blow a constant supply of air into the approved screening device for approximately 6-10 seconds. This task can be very difficult for someone with a medical condition.
Aside from a medical condition, there may be other circumstances which would amount to a reasonable excuse for failing to provide a breath sample. For example, for individuals who do not speak or understand English, they may not reasonably understand the instructions of the officer regarding how to use the machine and provide an appropriate breath sample. There have also been rare circumstances where a person is simple so nervous that they are incapable of following the officer’s instructions about providing a breath sample.
Excuses such as having a common cold, fatigue, or the fact that it is cold outside have generally not been accepted by our courts as being reasonable excuses for failing to provide a sample. However, concerns regarding the sanitation of the breath machine can form a reasonable excuse not to comply with a demand for a roadside breath test. You are entitled to have a fresh mouth piece when you provide a breath sample. This means that the officer must provide you with a mouth piece that is still in the wrapping.
Failing to provide a breath sample can also have absolutely nothing to do with your actions. If the machine is not functioning correctly or it has not been calibrated recently, it may not produce a result despite your best efforts to provide a sample. These machines should be calibrated regularly. For example, if the officer did not have knowledge that the specific machine had been calibrated as required then the officer may not have been able to properly form the opinion that the device would produce a reliable result. In these circumstances, the demand for a breath sample may not be legal one, and if the demand is not legal, then the Crown Attorney cannot prove all the physical elements of the offence and you are entitled to be found not guilty.
Failing to provide a breath sample is a serious offence If you have been charged with refusing or failing to provide a breath sample, contact me today and arrange a free consultation.
For more information on Refusing to Provide a Sample and the potential penalties, click here.