refuse or fail to provide breath sample

Refuse or Fail to Provide Breath Sample in Calgary

Having a police officer stop your vehicle and demand that you give breath samples can be an extremely stressful and scary situation. Many clients find themselves charged with refusal/failure before they even know what is happening to them.

Under Canada’s impaired driving regime, you are required by to give samples of your breath or blood upon the demand of a police officer in two different situations. It is an offence to intentionally fail or refuse to provide these samples.

1) When a peace officer suspects that you have alcohol in your body
Along with the suspicion that you have operated a motor vehicle in the last three hours, they may demand that you provide forthwith a sample of your blood or breath into a roadside screening device. This acts as a means of preliminary screening to determine if further breath tests are necessary.

The roadside screening device, formally called an “Approved Screening Device” or ASD does not provide a numerical reading of your blood alcohol content. Rather it is a relatively quick method of obtaining a preliminary measure of the amount of alcohol on your body. The results of the ASD are not admissible in court, but a police officer can use the results in deciding whether to take you for further testing, or let you go on your way.

Generally, the police are not legally obligated to let you speak to a lawyer before giving an ASD sample.

2) When a police officer believes that your ability to operate a motor vehicle is impaired by alcohol
Along with the suspicion that you have driven a vehicle in the last three hours, they may demand that you provide multiple samples of your breath into an approved instrument (commonly known as a “breathalyzer” or “intoxylizer”). This method provides a detailed measurement of the amount of alcohol in your body can be taken. These breath samples are usually conducted at a police detachment or on a Checkstop bus. The results of these breath samples are what the prosecution will rely on when trying to have you convicted for driving with excess alcohol in your blood. You have the right to consult with a lawyer prior to giving these samples.

Bail Conditions for Refusal or Fail to Provide Breath Sample

In Alberta, your license is automatically suspended indefinitely if you are charged with refusing or failing to provide breath samples under the Alberta Administrative License Suspension (AALS). This suspension is in place until your criminal charges are disposed of. Depending on the location of your charge, this can result in a delay of up to a year!

We have successfully appealed these suspensions so that our clients can keep driving while their charges work their way through the legal system. You only have a short time window to appeal this suspension, so contact us today.

DO NOT drive while your license is suspended. You can be charged with an offence that carries an automatic 6 month driving suspension upon conviction.

Defending Fail or Refusal to Provide Breath Sample

We diligently review all the available police evidence and your version of events to determine the following key issues:

  • Was the demand lawful in the first place?
  • Did the police have sufficient grounds to make the demand?
  • Did the police make the demands in a timely manner?
  • Were you given an adequate opportunity to discuss your options with a lawyer before you were made to provide samples (in the case of an “approved instrument” demand)
  • Were any of your constitutional rights violated?
  • Were the breath devices functioning properly?
  • Were you given a reasonable number of chances to give samples?
  • Do you have a medical or other legitimate excuse for failing to provide samples?
  • Where you have viable defence, we will vigorously pursue it through cross-examination of the Crown’s witnesses; applying to have inadmissible evidence excluded from the trial; and putting forth your version of events in a compelling way.

If your defence depends on putting forward evidence of a medical condition that prevented you from providing breath samples, we can help. Putting forward such evidence is a complicated matter, and will likely involve getting a report from a medical expert who has assessed you. That report must be filed properly with the Court and presented in a truthful and convincing fashion.

The Sentence

The penalties are every bit as severe as a conviction for driving impaired or driving with excess blood alcohol. Someone found guilty of failing or refusing to give samples faces up to 5 years in jail. There are also heavy minimum punishments:

First-time offender: $1000 fine and driving prohibition of 1 year.
Second-time offender: 30 days incarceration and driving prohibition of 2 years.
Third-time offender: 120 days incarceration and driving prohibition of 3 years.

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Charges from outside of Calgary near Okotoks Michael had helped me through this time with getting both charges dropped. Michael has been very thoughtful and professional throughout the tough times. Top Lawyer in the Calgary area. Recommended to anyone facing traffic charges.

starM.C.

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After being charged with impaired driving, I retained Michael and am extremely pleased with the services he provided. He is very knowledgeable, professional and understanding. Michael kept me up to date about everything that was happening with my case. Within 3 weeks all my charges were dropped.

starK.S.

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Disclaimer: All results of cases handled by the lawyer/firm are not provided. The results provided are not necessarily representative of results obtained by the lawyer/firm or of the experience of all clients or others with the lawyer/firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.

Successful Case Results

Impaired Driving and Over .08, Charges Withdrawn

Calgary Provincial Court
Case Number: 7519721

Our client drove through a checkstop, indicated he had some drinks that evening, and was noted to have glassy mirrored eyes and a smell of alcohol on his breath. He failed the roadside breath test, blew .140 on the evidentiary instrument, and was charged with impaired driving and driving over .08.

Once we were retained, we set the matter for trial and filed a motion alleging a violation of our client’s Constitutional rights under the Canadian Charter of Rights and Freedoms. Days before trial, we successfully negotiated the withdrawal of all charges.

Successful Result: No Criminal Record, Charges Withdrawn

Impaired Driving and Over .08, Charges Withdrawn

Calgary Provincial Court
Case Number: 5519791

Our client was observed accelerating at a high rate of speed through a parking lot. Upon stopping, the police observed that his speech was slurred, and he admitted drinking that day. He failed the roadside breath test, and was charged with impaired driving, driving over .08, and some traffic tickets.

Once we were retained, we set a trial date and filed a motion alleging a violation of our client’s Constitutional rights under the Canadian Charter of Rights and Freedoms. We successfully negotiated a stay of proceedings on all criminal charges in exchange for a guilty plea to one of the traffic tickets.

Successful Result: No criminal Record, Charges Stayed

Impaired Driving and Over .08, Charges Withdrawn

Canmore Provincial Court
Case Number: 7620141

Our client was stopped by the RCMP after being observed driving erratically. He had an odour of alcohol on his breath, blood shot eyes, and admitted drinking beer earlier in the day. He failed the roadside breath test, provided further breath samples at the RCMP station, and was charged with impaired driving and driving over .08.

Once we were retained, we carefully reviewed the allegations and found what we believed to be a fatal flaw in the RCMP investigation. We contacted the Crown Prosecutor’s office, and successfully negotiated a withdrawal of all charges.

Successful Result:
No Criminal Record, Charges Withdrawn
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Disclaimer: All results of cases handled by the lawyer/firm are not provided. The results provided are not necessarily representative of results obtained by the lawyer/firm or of the experience of all clients or others with the lawyer/firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.