The Charge

Having a police officer stop your vehicle and demand that you give breath samples can be an extremely stressful and scary situation, and things will proceed very quickly. Many clients find themselves charged with refusal/ failure before they even know what is happening to them! Let us help.

Under Canada’s impaired driving regime, you are required by to give samples of your breath or blood upon the demand of a police officer in two different situations. It is an offence to intentionally fail or refuse to provide these samples.

The situations in which you are required to provide samples of your breath or blood are:

1) When a peace officer suspects that you have alcohol in your body, and that you have operated a motor vehicle in the last three hours, he may demand that you provide forthwith a sample of your blood or breath into a roadside screening device, as a means of preliminary screening to determine if further breath tests are necessary.

The roadside screening device, formally called an “Approved Screening Device” or ASD does not provide a numerical reading of your blood alcohol content. Rather it is a relatively quick method of obtaining a preliminary measure of the amount of alcohol on your body. The results of the ASD are not admissible in court, but a police officer can use the results in deciding whether to take you for further testing, or let you go on your way.

Generally, the police are not legally obligated to let you speak to a lawyer before giving an ASD sample.

2) When a police officer believes that your ability to operate a motor vehicle is impaired by alcohol, and that you have driven a vehicle in the last three hours, he may demand that you provide multiple samples of your breath into an approved instrument (commonly known as a “breathalyzer” or “intoxylizer”) so that a detailed measurement of the amount of alcohol in your body can be taken. These breath samples are usually conducted at a police detachment or on a Checkstop bus. The results of these breath samples are what the prosecution will rely on when trying to have you convicted for driving with excess alcohol in your blood. You have the right to consult with a lawyer prior to giving these samples.


In Alberta, your license is automatically suspended indefinitely if you are charged with refusing/ failing to provide breath samples under the Alberta Administrative License Suspension (AALS). THis suspension is in place until your criminal charges are disposed of. Depending on the location of your charge, this can result in a delay of up to a year!

Calgary Criminal Lawyers may be able to get your license back, by applying to the Alberta Transportation Safety Board either by oral or written submissions. We have successfully appealed these suspensions so that our clients can keep driving while their charges work their way through the legal system.

You only have a short time window to appeal this suspension, so contact us today.

DO NOT drive while your license is suspended; you can be charged with an offence that carries an automatic 6 month driving suspension upon conviction

The Defence

Calgary Criminal Lawyers can explore all the potential defences you may have to a charge of failing/refusing to give breath or blood samples. We will diligently review all the available police evidence and your version of events to determine the following key issues:

  • Was the demand lawful in the first place?
  • Did the police have sufficient grounds to make the demand?
  • Did the police make the demands in a timely manner?
  • Were you given an adequate opportunity to discuss your options with a lawyer before you were made to provide samples (in the case of an “approved instrument” demand)
  • Were any of your constitutional rights violated?
  • Were the breath devices functioning properly?
  • Were you given a reasonable number of chances to give samples?
  • Do you have a medical or other legitimate excuse for failing to provide samples?

Where you have viable defence, we will vigorously pursue it through cross-examination of the Crown’s witnesses; applying to have inadmissible evidence excluded from the trial; and putting forth your version of events in a compelling way.

If your defence depends on putting forward medical evidence of a medical condition that prevented you from providing breath samples, we can help. Putting forward such evidence is a complicated matter, and will likely involve getting a report from a medical expert who has assessed you. That report must be filed properly with the Court and presented in a truthful and convincing fashion. Calgary Criminal Lawyers have defended hundreds of people charged with failing or refusing to provide breath samples, and we can help you today!

The Sentence

The penalties are every bit as severe as a conviction for driving impaired or driving with excess blood alcohol. Someone found guilty of failing or refusing to give samples faces up to 5 years in jail. There are also heavy minimum punishments:

  • First-time offender: $1000 fine and driving prohibition of 1 year.
  • Second-time offender: 30 days incarceration and driving prohibition of 2 years.
  • Third-time offender: 120 days incarceration and driving prohibition of 3 years.