When a valid demand has been made for a breath sample or blood sample, an individual must provide a sample unless that individual has a reasonable excuse. An individual might not be impaired or over 80, yet, if they fail to provide a breath sample, they will be convicted for a DUI offence. Failing to provide a breath sample without a reasonable excuse can limit defences that would otherwise be available.
Furthermore, failing to provide a breath sample makes it so that there is no evidence of how much alcohol was in a person’s system. If a person blew below 80, they would not be charged for over 80 operation or care and control. Providing a breath sample could dictate whether charges would be laid if at all. However, even if a person were to blow 0, the fact that they failed to provide a breath sample without a reasonable excuse would premise the foundation of a person being charged with refusing to provide a breath sample without a reasonable excuse.
The consequences of failing to provide a breath sample or blood sample are the same as with any other DUI related offence. Failing to provide a breath sample is applicable to both an approved screening device at the side of the road as well as to an intoxylizer operated by a qualified breath technician at a police station. It is important to note that a “failure” must be final and unequivocal. A police officer must be able to articulate how the failure was perceived and how it was attributable to only the individual’s actions. The police office must also be able to state based on their involvement and observations how the “failure” is explicit and is an act of finality on the part of that individual.
The focal point with this type of offence is analyzed by looking at two aspects. Initially, an evaluation is conducted as to whether the demand was provided and whether that demand itself was valid. Secondly, an evaluation is conducted as to whether the “failure” could be construed as final and unequivocal. A further point of analysis would be with respect to the actions of the police officers and the concept of whether there was a reasonable opportunity to provide a sample.
An analysis is conducted by our experienced lawyers with respect to both of these areas. If there is a reasonable excuse why an individual cannot provide a suitable sample, then that individual should not be convicted of this offence.
