Fail Or Refuse To Provide A Sample Lawyer

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Am I at liberty to say no to a breath sample request? Well, the short answer is yes, but be ready to face criminal charges. According to the law, a driver should comply with the police officer’s request to provide a breath sample. If you refuse to do so or fail to give an adequate sample, you’ll be charged with refusal to provide a breath sample.

Unlike in other drug tests where the police are required by law to have a reasonable suspicion that you’re under the influence of drugs before requesting a test sample, the police do not need a reason to demand a breath sample for alcohol concentration tests. Also, they can conduct sobriety roadside tests, whether or not they suspect impaired driving. This is as stipulated by the recently implemented federal laws.

A refusal to provide a breath sample charge carries serious consequences that take effect immediately and extend into your future. In some cases, persons who fail to provide breath samples can be charged with impaired driving charges, increasing the possible consequences.

Reasons for Failing to Provide a Breath Sample

The reasons behind your failure to provide a breath sample are vital in every case. A criminal defence lawyer carefully reviews your case details to assess whether your reasons were intentional or unintentional, which they use to develop your defence strategy.

  • Unintentionally Failing to Provide a Sample

When an officer requests your breath sample, you may unintentionally fail to comply for various reasons. Since a successful conviction requires the prosecution to prove intent to commit the offence, it’s hard to be found guilty of the crime. Retain an experienced failure to provide a breath sample lawyer in Toronto to protect your rights and fight the charges.

  • Intentionally Failing to Provide a Sample

As per the Criminal Code provisions, one can only be charged with this criminal offence if they intentionally refuse or fail to provide a sample after a demand has been made, without a reasonable excuse. You can be easily found guilty of the offence by intentionally failing to comply with the officer’s lawful requests. To minimize the possible penalties, it’s essential to work with a skilled lawyer in Toronto.

Reasonable Excuses for Failure to Provide Breath Sample

It’s good to note that there are reasonable excuses for failing or refusing to provide breath samples. However, the Courts are stringent as to what constitutes an acceptable reason. Therefore, it’s usually best to try and give a sample when the police request you for one. Trying and failing is better than total refusal and will amount to unintentional failure to provide a breath sample.

Some reasonable and acceptable excuses include:

  • Medical issues

If you want to provide your breath sample but some medical issue, such as asthma, emphysema, or an injury, makes it difficult to blow into the machine or other device, the Court will most likely find you not guilty. The accused will have to provide medical records to support such an excuse.

  • Machine Failure

If the device used is faulty, the accused will have a reasonable excuse if charged with failure to provide a breath sample. For example, if the machine gives out inconsistent readings or has a blockage in the mouthpiece, it’s impossible to give a sample.

  • Lack of Comprehension

If the accused does not understand the instructions provided by the police officer due to language barrier, excessive intoxication, or other reasons, it’s not easy to provide a breath sample. This is an unintentional act. As such, you may be found not guilty of the offence. However, you can still be found guilty of impaired driving if you were driving while intoxicated but failed to provide a sample.

  • Unreasonable Inconvenience

If you have to be transported for a long distance to take the test in that it’s unlikely to be performed within the timeframe provided by law, one can refuse or fail to provide their breath sample.

Why People Refuse to Provide Breath Samples

In most cases, people refuse to provide breath samples as they think they’ll evade any consequences by doing so. This turns out to be wishful thinking when they face criminal charges and a ton of penalties.

Others refuse to comply with police officers’ requests as they are unaware of the severe consequences of failing to provide a sample.

In other scenarios, individuals refuse to provide breath samples until they speak to their attorneys. Before 2018, it was okay to consult your lawyer before accepting any tests. However, as per the new laws, you do not have the right to speak to your lawyer before providing a breath sample. First, you comply, and then you seek legal advice.

Therefore, unless you have a reasonable excuse to refuse or fail to provide a breath sample, it’s in your best interest to comply.

Contact Zamani Law for legal representation if you’re facing refusal or failure to provide a breath sample in Toronto.

Penalties for Failing or Refusing to Provide a Breath Sample

Failing or refusing to provide a breath sample charge has two categories of sentences, i.e., those offered by the Criminal Code and the Highway Traffic Act. Most of the criminal offence’s penalties are similar to those of impaired driving charges.

  1. Penalties Under the Highway Traffic Act

If you refuse to comply and provide a breath sample, you’ll face the following penalties under the Highway Traffic Act:

  • An immediate 90-day administrative license suspension
  • 7-day vehicle impoundment
  • $550 administrative penalty
  • $275 license reinstatement fee

If convicted, the following mandatory penalties will also apply:

  • First conviction – 1-year license suspension
  • Second conviction (within ten years after the first conviction) – 3 years’ license suspension
  • Third conviction (within ten years after second conviction) – lifetime license suspension

Apart from license suspension, other penalties include attending a mandatory treatment program and driving a car with an ignition lock for at least 6 months.

  1. Penalties Under the Criminal Code

One can only face the penalties provided by the Criminal Code upon finding guilt following a criminal court trial. Section 320.19 (1), (4) of the Act provides the penalties for a conviction, which, as stated earlier, are similar to those of impairment conviction.

Minimum penalties

  • First offence – A minimum of $2,000 fine
  • Second offence – 30 days in prison
  • Subsequent offence – 120 days in prison

Depending on how the prosecution elects to proceed, one may also face some lengthy jail time.

  • Indictable offence –  Up to 10 years in prison
  • Summary Offence – Up to 2 years in jail less a day

Consequences of A Conviction for Failing to Provide a Breath Sample

A conviction for failing or refusing to provide a breath sample has far-reaching consequences. Apart from fines, license suspension, and possible imprisonment, the following are other repercussions of a conviction:

  • A permanent criminal record. This is a life-long consequence that will negatively impact your employment/career opportunities.
  • Increased insurance premiums
  • Loss of work
  • A criminal record can lead to travel restrictions, e.g., denial of entry into the US.
  • Immigration and permanent residence issues

With such and more consequences, it’s clear that a conviction for failure or refusal to provide a breath sample is lifelong and damaging. This is why, when facing such or other driving offences, you should never plead guilty without legal counsel. When charged, take advantage of your right to an attorney and contact Zamani Law for legal advice.

How Can a Criminal Lawyer Help You with Failure to Provide a Breath Sample?

Although refusing to provide your breath sample may seem like a minor offence, the penalties and subsequent repercussions are severe and life-long. This is why it’s requisite to retain a skilled criminal defence lawyer, such as Farid Zamani, as soon as you’re charged.

As a skilled lawyer, Farid will meticulously review the details of your case and advice on the best way to proceed. Having represented numerous Toronto residents on similar and other driving-related charges, he has the knowledge and skills to develop a strong defence strategy to get your charges dropped or alleviate the possible penalties.

Contact Zamani Law at (647)-493-2808  to schedule your consultation.

Sections 255 (2.2) and 255 (3.2) contain the amendments to the criminal code to create these charges.

Section 255 Criminal Code of Canada

 

(2.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

 

(3.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in the death of another person, or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life.

 

The circumstances in this type of case are very serious. There can be a number of various defences similar to those set out on the Fail or Refuse to provide Breath or Blood sample pages herein.

Below are some questions that criminal lawyers ask to find possible defences.

  • Was the demand proper?
  • Were rights to counsel given properly?
  • Was the instrument working properly?
  • Did the officer provide the proper instructions?
  • Did the accused knew or ought to have known that their operation of the motor vehicle caused an accident that resulted in a death?
  • Was there improper police conduct?
  • Is there a causal connection to the death?
  • Is there a reasonable excuse?

A conviction for this offence will result in a significant period of incarceration. A person charged with this offence should seek the assistance of legal counsel.

Being charged with a “Fail or Refuse” is serious and you should speak with an expert criminal defence lawyer. Our firm has handled and won these cases all over Ontario. It is important to work with someone who knows the charges, the criminal code, and your rights.

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