Refusing a Breath Sample in Toronto? 7 Surprising Facts You Should Know

Many drivers assume that refusing a breathalyzer test is a way to avoid a DUI charge. In reality, refusing to provide a breath sample in Ontario is its own criminal offence — and in many cases, it carries penalties just as severe as an actual impaired driving conviction.

If you’ve been charged with refusal in Toronto, here are seven facts that may surprise you, and what they mean for your case.

1. Refusal Is Treated the Same as a DUI Conviction

Under the Criminal Code of Canada, refusing to provide a breath, blood, or saliva sample when lawfully demanded by police is a criminal offence on its own — separate from impaired driving. The penalties are aligned with a first, second, or third impaired driving conviction, including mandatory minimum fines, driving prohibitions, and increasing jail time for repeat offences. In other words, refusing doesn’t let you sidestep the consequences of a DUI charge — it can result in the same outcome.

2. You Can Be Charged Even If You Weren’t Actually Impaired

Refusal charges don’t require the Crown to prove you were over the legal limit. The offence is about failing to comply with a lawful demand, not about your blood alcohol concentration. This means you could be stone sober and still face a serious criminal charge simply because you didn’t provide the sample when legally required to.

3. Police Need “Reasonable Grounds” — But the Bar Is Lower Than Many Think

Officers can demand a roadside breath sample if they have a reasonable suspicion you’ve consumed alcohol — not proof of impairment. This could be based on the smell of alcohol, an admission of drinking, or observed behaviour. Because the threshold is relatively low, an experienced lawyer will often scrutinize whether the officer’s grounds for the demand were actually lawful.

4. Your Vehicle Can Be Impounded Immediately

Just like a DUI charge, a refusal charge in Ontario typically results in an immediate roadside licence suspension and a 7-day vehicle impoundment, even before you’ve had a chance to appear in court. These administrative penalties are separate from — and in addition to — any criminal penalties that follow a conviction.

5. Medical Conditions Can Be a Valid Defence

Some individuals have legitimate medical reasons for being unable to provide an adequate breath sample, such as severe asthma, COPD, or anxiety-related conditions. Courts have recognized “reasonable excuse” as a defence to refusal charges. However, this defence typically requires supporting medical evidence and is closely examined by the Crown.

6. Timing and Procedure Matter — A Lot

Police must follow strict procedural requirements when making a breath sample demand, including proper timing (generally within a specific window of operating the vehicle) and clearly communicating the demand. If police failed to follow proper procedure, or if your Charter rights — such as the right to counsel — weren’t respected, evidence may be excluded, or the charge may be challenged entirely.

7. A Refusal Conviction Can Follow You for Years

Beyond fines and licence suspension, a refusal conviction results in a permanent criminal record unless a pardon is later obtained. This can affect employment, travel to the United States, and professional licensing — consequences that often outlast the original incident by many years.

What to Do If You’ve Been Charged With Refusal

If you’re facing a refusal charge in Toronto, acting quickly matters. Steps to take include:

• Don’t discuss the incident with police beyond identifying yourself — you have the right to remain silent.
• Request to speak with a lawyer immediately, which is your right under the Charter.
• Write down everything you remember about the stop, including what the officer said and did, as soon as possible.
• Contact an experienced DUI lawyer before your first court date to understand your options.

Charged With Refusal in Toronto? Contact Costa Law Firm

Refusal charges are technical, procedure-driven cases where the details of your stop can make or break your defence. Costa Law Firm has decades of experience defending impaired driving and refusal charges across Toronto, Newmarket, Vaughan, and Barrie, and our team is available 24/7 to review your case.

Call (416) 535-6329 for a free, confidential case evaluation.