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Refusal or Failure to Provide a Blood or Breath Sample

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Refusal or Failure to Provide a Blood or Breath Sample 2020-02-20T20:13:36+00:00

Refusal or Failure to Provide a Blood or Breath Sample

Section 254(5) of the Criminal Code makes it a criminal offence to refuse or fail to provide a sample of your breath or blood upon a lawful demand made by a peace officer. This applies to failing or refusing to provide a sample into either a roadside screening device, or an evidentiary instrument at the police station.

While Refusing a sample and Failing to provide a sample both fall under s. 254(5) of the Criminal Code, there is a slight difference between the two. Refusing a sample refers to situations where you are required to provide a sample, and you simply refuse by words or actions that amount to ‘no I will not do it’. Failing to provide a sample refers to a situation where you make multiple attempts to blow into a device, but you do not blow adequately enough to register a reading.

Because a refusal or failure can be caused by legitimate reasons, this charge can be defended by demonstrating that you had a reasonable excuse for the failure or refusal. For example, a reasonable excuse and defence to this charge would be that you had some sort of medical condition that prevented you from blowing hard enough to provide a sample.

Note that as with Over 80, a charge for refusal can also be accompanied by a charge for impaired driving. In order to avoid a criminal conviction, both charges will need to be defended at trial.

Defending an Impaired Driving, Over 80, or Refusal charge is a complicated and nuanced process that requires a significant amount of training and experience. To ensure that you have the best chance possible at defending your charges, contact our Victoria office as soon as possible. We will be able to use our skill and experience to quickly determine what defences may be available to you, and we will be able to advise you on the best way to proceed.

The Punishment for Impaired Driving in Victoria

In Victoria, as in the rest of Canada, if you are charged with an alcohol related offence you will be facing a harsh mandatory minimum sentence. If convicted of impaired driving, driving over 80, or refusal, for your first offence you will automatically face a minimum 1 year driving prohibition and $1000 fine. If this is your second offence, you are looking at a minimum of 30 days in jail plus a driving suspension of at least 2 years. If this is your third offence, you will have a minimum 120 days in jail and a minimum driving suspension of 3 years. This is not to mention the provincial suspension and fines that you will also face.

If you have been charged with an alcohol related driving offence in Victoria, or anywhere else in BC and you are concerned you may be found guilty, all hope is not lost. Our experienced lawyers are often able to find multiple avenues for defending you when you have been charged with this type of offence.

Some people who are charged with impaired driving offences may have a legitimate alcohol addiction. Our courts are understanding enough to recognize that alcohol addiction is a disease that often leads people to commit this offence. Rather than punishing you for your disease, the court may allow you to avoid a criminal conviction with a curative discharge.

A curative discharge is an application that requires you to advance medical evidence that demonstrates that you legitimately suffer from an alcohol addiction. In addition, in order to be successful in your application, you will also be required to undergo significant rehabilitative treatment to address your problem. Usually this involves some time spent in a treatment centre. Once you complete an intensive period of treatment, you will need to convince the court that you have a reasonable likelihood of remaining sober. If the court accepts your evidence, you will be discharged from the offence and will not receive a criminal record. You will still be subject to the one year driving prohibition, but avoiding a criminal record can assist you in securing a lower car insurance rate, better employment prospects, and the ability to remain in Canada (if immigration is an concern).

Bail Conditions for Impaired Driving in Victoria

If you have been charged with Impaired Driving or another alcohol-related driving offence in Victoria, you will face an immediate licence suspension. This licence suspension is not the same one as the one-year mandatory licence suspension that follows a conviction for Impaired Driving, Refusal, or Over 80. The one-year mandatory prohibition following a finding of guilt will not start until after you have been found guilty of the offence. It is important to know that the time you spend waiting to go to trial, or the time that you spend waiting for sentencing will not count towards the one-year suspension.

Following your arrest and release for impaired driving, you will be directed by the police to attend Victoria Provincial Court to enter a plea to the offence, and to a police station for fingerprinting. Typically, your first appearance will be set in a docket courtroom (like courtroom 101).

It is vital that you comply with the licence suspension, and the direction to attend court and get your fingerprinting done. A failure to comply with any of the terms of your release can result in a new criminal charge being laid against you. Because it can take anywhere from 3 to 10 months to go to trial for a DUI type charge in Victoria, it is in your best interest to get in touch with someone from our office as soon as possible. The longer you wait, the longer you can be kept off the road.

At Oykhman Criminal Defence, we have developed a very strong focus on defending alcohol related driving offences. Collectively, our team has defended thousands of impaired driving charges, and we have the experience and knowledge needed to provide you with sound advice on the best way to handle your matter. Set up a meeting with one of our criminal defence lawyers at our Victoria office today, and we will be able to review your case and help you quickly determine the most effective and efficient way to defend your impaired driving charges.

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