Refusing a Breathalyzer in Ontario: Penalties & Defences (2026)

A common belief is that if you refuse to blow, police cannot prove you were impaired. In Canada, that belief is dangerous. Refusing — or failing — to comply with a lawful breath demand is a separate criminal offence, and the penalties are at least as severe as those for driving over the legal limit. This guide explains refusal charges in Ontario in 2026 and how they are defended.

What counts as a refusal?

Under section 320.15 of the Criminal Code, it is an offence to fail or refuse, without a reasonable excuse, to comply with a lawful demand for a breath, blood, or drug sample. That includes:

• refusing outright to provide a sample;
• pretending to blow, or deliberately providing samples that are inadequate for analysis; and
• refusing to perform physical coordination tests or a drug recognition evaluation when lawfully demanded.

Mandatory alcohol screening

Since 2018, police who have an approved screening device can demand a roadside breath sample from any driver they have lawfully stopped — they do not need to suspect that you have been drinking. A RIDE check or a traffic stop is enough. That makes refusal charges far more common than many drivers expect.

Penalties for refusal in 2026

The consequences start at the roadside. Under Ontario’s rules, refusing to comply with a demand brings the same immediate penalties as blowing over 0.08:

• an immediate 90-day licence suspension;
• a 7-day vehicle impoundment;
• a $550 administrative penalty plus a licence reinstatement fee; and
• mandatory education or treatment programming.

On conviction, the Criminal Code penalties for a first refusal include a minimum $2,000 fine — higher than the minimum for most first-offence over-80 convictions — and a minimum one-year driving prohibition, together with a permanent criminal record. A second offence carries a mandatory minimum of 30 days in jail, and a third, 120 days. Ignition-interlock conditions and steep insurance increases follow.

Defences to a refusal charge

Refusal charges are technical, and the Crown must prove every element. Common defence angles include:

• The demand was not lawful. The officer must have had lawful authority for the stop and the demand, and the demand must have been made properly and at the right time.
• A reasonable excuse. A genuine medical condition that made it impossible to provide a suitable sample can be a defence, but it must be supported by evidence.
• No actual refusal. Confusion, a language barrier, or a genuine attempt that the officer wrongly treated as a refusal can raise a reasonable doubt — especially where breath-room video tells a different story.
• Equipment and procedure. Whether the screening device or approved instrument was working and operated correctly can matter.
• Charter breaches. At the police station, you have the right to speak to a lawyer before providing breath samples into an approved instrument. If that right was not respected, evidence may be excluded.

Refusal vs. over 80: which is worse?

In practice, a refusal is rarely the better choice. The minimum fine is higher, the licence consequences are the same, and the charge cannot be answered by challenging a breath reading, because there is none. If you have already been charged with refusal, though, the technical nature of the offence often gives an experienced lawyer real room to work. For more on first-time impaired cases, see our guide to a first DUI in Ontario.

What happens at the roadside, step by step

1. The stop. Police stop you at a RIDE check or for a traffic reason.
2. The screening demand. An officer with an approved screening device demands a roadside breath sample — which they can do for any lawfully stopped driver.
3. The result. A “fail” result usually leads to arrest and a demand for samples into an approved instrument at the station; a “warn” result brings a short provincial suspension.
4. At the station. Before providing samples into the approved instrument, you must be told of your right to a lawyer and given a reasonable opportunity to speak with one.

A refusal can happen at the roadside stage or at the station, and the defences differ depending on where it occurred and what the officer said and did. The breath-room video and the officer’s notes are often decisive.

Drug-impaired driving and refusal

Refusal charges are not limited to alcohol. Police can demand standardized field sobriety tests at the roadside and, at the station, an evaluation by a drug recognition expert, followed by a bodily fluid sample. Refusing those lawful demands without a reasonable excuse is also an offence under section 320.15, with the same penalties.

Frequently asked questions

Can I insist on speaking to a lawyer before blowing at the roadside? Generally no. The right to counsel is suspended for the brief roadside screening test, so refusing in order to call a lawyer is usually treated as a refusal. At the police station, however, you are entitled to speak to a lawyer before providing samples into the approved instrument.

What if I physically can’t provide a sample? A genuine medical inability can be a reasonable excuse, but it should be raised with the officer at the time and supported by medical evidence later. Simply saying you have asthma, without more, is rarely enough.

Can I be charged if I wasn’t driving? Yes. The demand can be made to a person in care or control of a vehicle — for example, someone sitting in the driver’s seat with the engine running. Whether you were in care or control is itself a contested issue in many cases.

Refusal, insurance and your job

Insurers treat a refusal conviction the same way as an impaired driving conviction: most drivers are moved into high-risk coverage for years, often at several times their previous premium. A criminal record can also affect jobs that involve driving, professional licences, and travel to the United States. Those long-term costs usually dwarf the fine, which is why a refusal charge is worth defending properly from the start.

Talk to a lawyer before your first court date

Aaron M. Spektor has defended impaired driving and refusal charges across the GTA for 30 years. For a free, confidential review of your case, call (416) 599-1900 or request a consultation.

Sources

• Criminal Code (R.S.C. 1985, c. C-46) — Justice Laws
• Impaired driving penalties — Government of Ontario
• Highway Traffic Act (Ontario) — e-Laws
• Canadian Charter of Rights and Freedoms — Justice Laws

This article is general information about Ontario criminal law, not legal advice. Every case turns on its own facts; speak with a lawyer about your specific situation.