Failure or Refusal to Provide a Sample Charge in Winnipeg

What is Failing or Refusing to Provide a Breath Sample? What is Failing or Refusing to Provide an Oral Fluid Sample?

Under the Criminal Code of Canada, the police have the authority to ask any lawfully-stopped driver to provide a roadside breath-screening sample. A police officer may also demand you provide an oral fluid sample if they suspect you have a drug in your system while driving or in control of a motor vehicle. In addition, the police can demand a driver submit to a Standard Field Sobriety Test (SFST) or a Drug Recognition Expert Evaluation (DRE). If the results of any of these tests are positive, in furtherance of their investigation, the police officer may require you to provide a breathalyzer sample, and a blood or urine sample. If you don’t successfully provide a sample, or refuse to participate in the SFST or DRE, you will be charged with failure or refusal. Often times, the police will also charge you with impaired driving.

In addition to these criminal charges, the police will suspend your driver’s licence for three months and your driver’s rating on the DSR scale will be decreased by five points. In order to have your licence reinstated after the suspension period, you have to complete an addictions assessment with the Addictions Foundation of Manitoba (AFM).

In order to be convicted of failure or refusal to provide a sample, the Crown Attorney needs to prove the following beyond a reasonable doubt:

1. a proper demand was given and understood;
2. the accused failed or refused to provide a sample, or participate in the SFST or DRE;
3. the accused intended to fail or refuse to provide a sample, or participate in the SFST or DRE; and,
4. there was no reasonable excuse for why the accused failed or refused to provide a sample, or participate in the SFST or DRE.

Sentencing for Failing or Refusing to Provide a Sample

The maximum jail sentence is ten years. The minimum sentences are as follows:

• A minimum fine of $2000 and a one year driving prohibition for a first conviction.
• A minimum jail sentence of 30 days and a two year driving prohibition for a second conviction.
• A minimum jail sentence of 120 days and a three year driving prohibition for subsequent convictions.

In addition to the criminal driving prohibition, you will also be suspended from driving for two year by the registrar of motor vehicles.

Defending Failure or Refusal to Provide a Sample Charge

With the complexity of most impaired driving offences, there are numerable issues that can arise in any case. I will review your case focusing on your interactions with the police before and during the sampling process. Depending on your specific circumstances, a number of different defences may be available.

In cases in which it is alleged the accused failed or refused to provide an oral fluid sample, the assessment always begin with asking whether the police had the legal grounds to make the demand for the sample. Without a reasonable suspicion to believe a drug was in the driver’s body, the accused is entitled to refusing the demand to provide a sample. The availability of this defence is always case specific and dependent on the facts.

If the police have the grounds to demand a sample, the defence lawyer will then have to assess your reason for failing or refusing to provide a sample. A lawful excuse to failing or refusing to provide a sample fall into two categories: unintentional and intentional.

Unintentional Reasons For Failing or Refusing to Provide a Sample

There have been a number of successful arguments raised in circumstances where the accused’s failure or refusal to provide a sample was outside of their control. These have included:

1. the accused was not driving and had no intention to drive;
2. unintentionally failing the breath test;
3. the approved screening device or breathalyzer was not functioning properly;
4. the accused failed to understand the breath demand instructions;
5. the refusal was not unequivocal; and,
6. medical reasons.

Intentional Reasons For Failing or Refusing to Provide a Sample

If you intentionally failed or refused to provide a breath sample or saliva sample, you must establish a reasonable excuse in order to avoid conviction. The courts have accepted the following excuses as reasonable:

1. mental health grounds;
2. medical reasons;
3. the accused being denied the right to consult with a lawyer prior to providing the breathalyzer, blood, or urine sample;
4. the police lacked the grounds to make the oral fluid demand;
5. the approved screening device or breathalyzer was not functioning properly; and,
6. there was an unreasonable inconvenience in providing a sample.

Related Impaired Driving Topics

1. When can the police pull me over?
2. What is the Licence Suspension Appeal Board?
3. What is the true cost of an impaired driving conviction?
4. Impaired Driving Penalties in Canada