Been Charged? Time to speak to A DUI Lawyer, Free Consultation...  Contact Us Now


What is Failing to provide a breath sample in Ontario

"I wasn't able to provide a breath sample and they charged me with impaired"

Failure to provide a breath sample in ontarioWhen a breath sample is demanded the roadside breath testing machine is used by the officer who pulled you over or stopped you at a RIDE spotcheck or traffic stop. This portable, hand-held machine is called an “Approved Screening Device. It is used to determine your approximate blood alcohol level, but it is less accurate than the machines kept in police stations. You may be told to blow in to this machine to tests your breath for alcohol or perform physical co-ordination tests. If you fail or refuse to provide a breath sample or to perform the physical co-ordination tests, you will be charged under the Criminal Code.

Not providing sufficient samples of breath for the required duration, playing with/removing the mouthpiece from the machine, not blowing properly and not complying with instructions would lead to the Failure to provide a breath sample. If the person has a phobia or a medical reason for not providing a breath sample he must inform the testing officer so an alternative sample can be collected. Refusing to provide a blood or urine sample could lead to the offence. Claiming to have complied by taking the roadside breath test could lead to the offence since this has been held to be a preliminary test only.

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer's opinion, will enable a proper analysis to be made by means of an approved instrument.

Samples of bodily substances
(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,
(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or
(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person's life or health.

Failure or refusal to comply with demand
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

View Our Winning Record

Charged with Fail to Provide Breath Sample, Impaired Driving?

You were arrested?

 Until the evidence is seen by a Criminal Lawyer only then can your options be presented to you. How much will this cost? Again, you need to sit down with a lawyer to understand the complexities of your case. Contact us today for a free case evaluation.

Toronto & GTA Call  289.481.1007-  Outside GTA Call  1-877-497-3927

For Russian, Farsi, Dari, Uzbek & Hindi Language Lawyer please call 1-877-266-6415

Blowing over 80 is the most common drinking and driving Charge that is defended in the courts. In Ontario, operating an automobile, boat, snowmobile or motorcycle - motorized vehicle with an alcohol level that exceeds 80 milligrams of alcohol per 100 millilitres of blood is over the legal limit.


Email IDDC for FREE Consultation Request :

Or Call: 1-877-497-3927 / 24hours -

If you would like to book a FREE Consultation, fill in this form. You will be contacted as soon as possible.
Please fill in all required fields.
For Russian, Farsi, Dari, Uzbek & Hindi Language Lawyer please call 1-877-266-6415 Anywhere in Ontario.
FREE Consultation Request

Serving Toronto & Many Regions in Ontario

  Central East
Central South
Central West
  Barrie   Brantford   Brampton    
  Bracebridge Cayuga   Guelph    
  Cobourg   Hamilton   Milton    
  Oshawa Pickering   Kitchener Waterloo   Orangeville  
  Lindsay   Simcoe   Owen Sound  
  Newmarket St. Catharines Walkerton  
  Peterborough Welland        
   Toronto   Niagara falls        
  Belleville   Cochrane   Chatham    
  Brockville   Gore Bay   Goderich    
  Cornwall   Haileybury London    
  Kingston   North Bay Sarnia    
  L’Orignal   Parry Sound St. Thomas  
  Ottawa   Sault Ste. Marie Stratford    
  Napanee   Sudbury   Windsor    
  Pembroke Timmins   Woodstock  
  Perth   Thunder Bay           
  Picton   Red Lake        


The IDDC - Defending Drinking & Driving Charges Across Ontario

Our Winning Record!

For Russian, Farsi, Dari, Uzbek & Hindi Language Lawyer please call 1-877-266-6415


Read Frequently Asked Questions About DUI Charges & Penalties in Ontario:

  • An officer requires sufficient grounds to make a lawful demand for a breath sample to be provided either at the roadside or the station. Furthermore at the roadside your legal jeopardy has to be clearly explained to you and, in circumstances where there are multiple attempts to provide a sample, you must be informed about your “last chance” before being charged. In circumstances where a motorist is deemed to have “refused” to provide a sample due to various failed attempts the Crown also has to show that the machine was in proper working order.
    Read More
  • The real issue in these cases is not whether you are “impaired” in any way but rather whether the Crown can prove beyond a reasonable doubt that your ability to operate a motor vehicle is impaired. Sometimes there may be an innocence explanation for irregular driving such as fatigue, illness or distraction. Other times evidence of bad driving might be offset by a review of the police station video which betrays no obvious indicia of impairment.
    Read More
  • There are multiple and sometimes very technical defences to this charge. Apart from operator error or machine malfunction, which can revealed through a careful analysis of breath device records, these cases are often successfully defended based on investigative lapses or constitutional violations. It is a criminal offence to operate a motor vehicle while your blood alcohol level is over the legal limit of: 80 milligrams of alcohol in 100 millilitres of blood.
    Read More
  • Although the law sanctions the arbitrary detention of motorists to conduct sobriety checks you are not obliged to incriminate yourself when questioned about drinking. This is because you are detained and haven’t been provided with your right to counsel. Although any statements you make in such circumstances can’t be used against you at trial that’s cold comfort at the roadside because an admission of consumption is admissible for the purposes of an officer’s grounds to make a demand for a roadside breath demand. That demand as well as the test must both be done promptly however to withstand constitutional scrutiny.
    Read More
  • The “free ride” for those driving while under the influence of drugs is now also over. Currently the police have the power to demand a suspect accompany them to the station for a drug evaluation test where they suspect impairment by drugs. Legislation is now also in the works to implement roadside technology to test for drug impairment that would be a similar tool to a breathalyzer, which measures blood alcohol levels. The obvious defence in these cases is whether the officer conducted such tests properly and whether he is properly qualified to render an expert opinion on sobriety
    Read More
  • You don’t actually have to be driving a motor vehicle to be charged with “DUI”. You can be arrested simply if you are behind the wheel of a parked car but the Crown will have to show that the vehicle was operable and that there was a real risk of danger that you would set the vehicle in motion.
    Read More
  • Recent Successes At the Impaired Driving Defence Centre, Christopher A. Avery takes your privacy very seriously. He also understands the curiosity of potential clients regarding our track record. For these reasons we have changed identifying details of the below cases in order to protect our clients’ privacy. We do not post the reported decisions of our clients’ cases as they are findable on a google search by name if I reproduce them here.
    Read More
  • If you are convicted of drinking and driving, your fingerprints and photographs will be retained by the RCMP in Ottawa. A conviction also means you will have a criminal record which will show up when police run a check and that can hurt your employment opportunities as well as your travel plans.
    Read More
  • When it comes to immigration, criminal records can make a huge difference on your ability to remain in the country or your ability to travel to another country in the first place. Sometimes travellers are stopped at the border due to an old conviction. They are stunned to discover that they need to apply for permission to cross due.....
    Read More