Traffic Offences
Refusing a Breathalyzer in Ontario
Refusing to provide a breath sample isn't a way to avoid an impaired driving charge — it's its own separate Criminal Code offence, treated just as seriously.
Quick answer: Refusing a lawful demand for a breath sample is a standalone Criminal Code offence under section 320.15, and the Code sets its penalties to match those for an impaired driving or over-80 conviction -- not a lesser consequence. On top of the criminal charge, Ontario's Highway Traffic Act imposes an immediate 90-day administrative licence suspension for a refusal, under section 48.3, separate from whatever happens with the criminal case.
Key Takeaways
- Refusal is its own Criminal Code offence under section 320.15, not just an absence of evidence.
- The Criminal Code sets refusal penalties to match an impaired driving or over-80 conviction.
- Ontario imposes an immediate 90-day administrative licence suspension under HTA section 48.3 for a refusal.
- The administrative suspension and the criminal case are separate processes that proceed independently.
Refusal is its own offence
Section 320.15 of the Criminal Code makes it an offence, without reasonable excuse, to fail or refuse to comply with a lawful demand for a breath, blood, or physical coordination sample related to suspected impaired driving. This means a driver who refuses can be charged and convicted of refusal itself, separate from -- and without the Crown needing to prove -- the underlying impairment that the sample would otherwise have helped establish.
The same penalties as an impaired driving conviction
Section 320.19 of the Criminal Code sets out that refusal is punished the same way as an impaired driving or over-80 conviction -- the same escalating structure of mandatory minimum fines, driving prohibitions, and potential jail time for repeat offences applies. The practical effect is that refusing doesn't offer a lower legal risk than simply providing the sample and letting the result speak for itself.
The separate Ontario licence suspension
On top of the Criminal Code charge, Ontario's Highway Traffic Act imposes its own immediate consequence: a 90-day administrative licence suspension under section 48.3, triggered by a refusal to comply with a breath- sample demand. This suspension is a licensing action administered separately from the criminal court process, and according to Tribunals Ontario's guidance on these suspensions, it's generally only open to appeal on medical-inability grounds, not on a broader challenge to the underlying refusal itself.
Why this surprises people
Some drivers assume that refusing a breath test removes the evidence needed to convict them, and therefore avoids a penalty altogether. In practice, Parliament closed that gap by making refusal its own offence with matching penalties, while Ontario layers its own immediate administrative suspension on top -- meaning a refusal typically results in consequences at least as serious as those for providing a sample and failing it.
Frequently Asked Questions
Can I avoid an impaired driving charge by refusing the breathalyzer?
No. Refusal is its own Criminal Code offence under section 320.15, with penalties set to match an impaired driving conviction, not a way to avoid consequences.
Does Ontario suspend my licence right away for refusing?
Yes, a 90-day administrative licence suspension applies under Highway Traffic Act section 48.3, separate from the criminal process.
Can I appeal the 90-day suspension for refusing?
According to Tribunals Ontario's guidance, an appeal of this suspension is generally limited to medical-inability grounds, rather than a broader challenge to the refusal itself.
Sources
Charged With Refusal?
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