What Is a Breathalyzer Test? Know Your Rights

Explore the intricacies of breathalyzer tests with Sondhi Defence. Learn about their workings, legal aspects, and how our team can assist in DUI cases.

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Understanding Breathalyzer Tests in Ontario

Driving under the influence (DUI) is a serious offence in Ontario that results in road accidents. These accidents cause property damage, catastrophic injuries, and, in severe cases, death. Impaired driving has been reported as the most prominent factor contributing to serious car crashes in Canada and the leading criminal cause of death and injury. In 2022, the police reported 53,092 alcohol-impaired driving incidents.

One of the ways in which police officers tackle the issue of impaired driving and help keep road users safe is by conducting an alcohol breath test using a breathalyzer device. If you have never been faced with this type of situation, you may be concerned about what a breathalyzer device is and your rights in such situations. You may also wonder what happens when you refuse a breath test and how to defend yourself at trial.

At Sondhi Defence, we know the significance of understanding your rights, the potential consequences of a refusal, and strategic ways to combat your charges. We have extensive experience defending the rights of Ontario residents who are charged with an impaired driving offence. We can help you navigate the criminal justice system’s intricacies and fight to protect your rights.

What Is a Breathalyzer Test?

Section 320 (27)of the Criminal code permits law enforcement officers to administer certain tests when testing for drugs or alcohol, including:

  • A physical coordination test

  • A breath test (breathalyzer device)

  • A blood test

Breathalyzer tests measure the blood alcohol concentration (BAC) of drivers who are suspected of driving impaired. It shows the amount of alcohol in a driver’s breath and helps a police officer decide how drunk they are. If they have consumed too much alcohol, they may not be safe to drive.

Types of Breathalyzer Devices

Police officers must use approved screening devices when attempting to measure blood alcohol content. The legally approved breath analysis instruments under SI/85-201 of the criminal code include:

  •  Intoxilyzer® 5000 C

  •  BAC Datamaster C

  • Alco-Sensor IV-RBT IV

  • Alco-Sensor IV/RBT IV-K

  • Alcotest 7110 MKIII Dual C

  • Intoxilyzer® 8000 C

  • DataMaster DMT-C

  • Intox EC/IR II

  • Intoxilyzer® 9000

The Accuracy and Challenges of Breathalyzer Tests

Although the police regularly use breathalyzer tests to measure blood alcohol levels, one of the primary challenges of using them is the failure to properly calibrate or maintain the testing equipment. The improper maintenance and calibration of breathalyzer devices make alcohol breath tests questionable and may result in inaccurate BAC measurements. Any evidence obtained from the improper use of a breathalyzer may be deemed inadmissible in court.

Medical conditions, such as diabetes, acid reflux, and Gastroesophageal reflux disease (GERD), can render breathalyzer tests unreliable. Another common reason for failed breathalyzer testing is a failure by law enforcement to observe the waiting period. The consumption of other food items, fluids, or medications may interfere with the BAC reading.

Understanding Breathalyzer Test Refusal

In some instances, individuals may refuse to undergo chemical testing in an attempt to provide less evidence for a DUI charge. However, it’s important to note that refusing to comply with an officer’s demand to provide a breath sample is considered a criminal offence under Section 320.15 of the Criminal Code. When requested by an officer, you are obligated by law to provide information regarding your recent alcohol consumption and to undergo a breath alcohol test.

A police officer must not have reasonable suspicion of alcohol intoxication when they lawfully pull you over. If they have an approved screening device in their possession, they can demand that you undergo mandatory alcohol screening.

If you are facing criminal charges for refusing a breath test, an experienced DUI lawyer in Newmarket can help you fight your charges.

Legal Ramifications of Refusal

A roadside refusal of a breathalyzer test when lawfully pulled over will result in an immediate ninety-day administrative suspension of your license. Your vehicle may also be impounded for seven days. If an Ontario Court determines that you had no basis for refusing the test, they may convict you.

A conviction means that you will face the same consequences as though you completed the test and failed. Under Section 320.19 (1) of the Criminal Code, you may face the following penalties:

  • Conviction by indictment – A maximum punishment of ten years in prison and a minimum punishment of a $1000 fine (first offence), 30 days jail term (second offence), 120 days jail term (for subsequent offences).

  • Summary conviction – A maximum punishment of a $5000 fine or two years less a day in prison and a minimum punishment of a $1000 fine (first offence), 30 days jail term (second offence), and 120 days jail term (for subsequent offences).

A conviction will also result in a criminal record, which may affect your job, ability to travel, and professional license.

What Does Failing a Breathalyzer Test Mean?

The maximum blood alcohol concentration for Ontario drivers is 0.08%. If your BAC is above the legal limit after taking a breathalyzer test, you will fail the test. For drivers aged twenty-one and below, the legal limit is zero and violating the limit will result in a driving conviction. After failing a breathalyzer test, you will be arrested for driving under the influence.

Defences of Refusing or Failing a Breathalyzer Test

Getting charged for refusing a breathalyzer test does not always equal a conviction. Specific legal issues may arise, which must be proven before you can be convicted. Some common questions we may raise include:

  • Was the police acting within their legal right when demanding the test?

  • Was your obligation to provide a breath sample clearly explained?

  • Were you capable of understanding what was said to you?

  • Were your Charter rights abused in any way?

If you are facing charges for failing a breathalyzer test, you may argue that:

  • The officer had no reasonable ground for the traffic stop.

  • The breathalyzer device was faulty.

  • Your Charter rights were violated.

  • The breath test results are inaccurate.

  • The office failed to adhere to proper testing procedures.

Consult an Experienced Criminal Lawyer

Have you refused a breathalyzer test and found yourself facing criminal charges? Then, reach out to us today for personalized advice about your case. We at Sondhi Defence understand how stressful facing a criminal charge of this nature can be. It may result in you losing your job, driver’s license, and your ability to travel to countries like the United States. Additionally, if you applied for immigration benefits, your application may be denied.

We are familiar with the criminal justice process and how Ontario police procedures work. We can help determine if the police followed the right procedures when administering the breathalyzer test and if your Charter rights were violated during the process.

Contact us today to schedule a free consultation with an experienced criminal lawyer.

Get In Touch

If you or someone you know has been charged with a criminal offence, call us right away at 1 (855) 4-SONDHI and get our team on your side. 

Andrew George Cowan
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