Refusing a breath or drug test in Ontario: what are the penalties?

Refusing or failing, without a reasonable excuse, to comply with a police demand for breath, blood, a drug evaluation or sobriety tests is a crime under section 320.15 of the Criminal Code. A first conviction carries a minimum $2,000 fine, a driving prohibition of at least one year and up to 10 years in prison by indictment. In Ontario, a refusal also means a 90-day licence suspension and a 7-day vehicle impoundment at the roadside.

Many drivers assume that saying no to the test keeps the evidence away from the court. Parliament set the minimum fine for a refusal higher than for most over 80 readings, and Ontario treats a refusal at the roadside exactly like a reading of 0.08 or more. This page explains what counts as a refusal, the penalties on the provincial and the criminal side, and what can change the result. For the wider picture of these charges, see our main page on impaired driving charges in Ontario.

What counts as a refusal?

Section 320.15(1) makes it an offence for anyone who knows that a demand has been made to fail or refuse to comply with it, without reasonable excuse. The demand must be one made under section 320.27 or 320.28 of the Criminal Code, and together those two sections cover almost every test police use:

• Roadside tests on suspicion (s. 320.27(1)). If an officer reasonably suspects that you have alcohol or a drug in your body and that you operated a conveyance within the preceding three hours, the officer can demand physical coordination tests, breath samples into an approved screening device, or a bodily substance sample for approved drug screening equipment.
• Mandatory alcohol screening (s. 320.27(2)). An officer who has an approved screening device and is lawfully exercising a power, such as a traffic stop, can demand a roadside breath sample from the person operating a motor vehicle, without any suspicion of drinking.
• Breath or blood for analysis (s. 320.28(1)). With reasonable grounds to believe you drove while impaired by alcohol or over 80, the officer can demand breath samples into an approved instrument run by a qualified technician, or blood samples if your physical condition makes a breath sample impossible or impracticable, and can require you to come along for the test.
• Drug evaluation and samples (s. 320.28(2) to (4)). For suspected drug impairment, the demand can be to submit to an evaluation by an evaluating officer or to give blood samples and, after an evaluation, to give oral fluid, urine or blood.

The word "fails" matters. You do not have to say "no" to be charged: not giving a suitable sample, or not completing the tests, can be treated as a failure to comply. Whether an attempt was genuine is a question of fact for the court, decided on the evidence, including any video.

The demands apply to anyone who operated a conveyance, not only a car, and the Ontario government notes that impaired driving laws also cover boats, snowmobiles and off-road vehicles. If you knew of, or were reckless about, an accident that caused bodily harm or death, the refusal becomes a more serious offence under section 320.15(2) or (3).

What happens after a refusal in Ontario, step by step?

1. The demand and the refusal. The officer makes a demand under section 320.27 or 320.28, and you fail or refuse to comply with it.
2. Your licence is suspended on the spot. Under section 48.3 of the Highway Traffic Act, the officer must ask for your licence, and it is suspended for 90 days from the moment of the request, whether or not you hand it over (s. 48.3(2) and (3)). There is no right to be heard first (s. 48.3(3.1)).
3. The vehicle is impounded. Section 48.4 requires the officer to detain the vehicle you were driving and have it impounded for seven days, at the owner's cost and risk, even if you borrowed it.
4. You receive paperwork. The officer must give you a written statement of when the suspension starts, how long it lasts and where the licence can be recovered (s. 48.3(4)(c)), and a notice of the impoundment (s. 48.4(4)).
5. The criminal charge. Police lay a charge under section 320.15 and usually release you with a court date. Our page on what happens at your first court appearance in Toronto explains that first date.
6. The provincial follow-up. For a fail or refusal, the province lists a $550 penalty and an education or treatment program, plus a licence reinstatement fee, currently $281, every time a licence is suspended.

The roadside suspension and impoundment are administrative. The Act says they are meant to protect the public and are not an alternative to any other proceeding (s. 48.3(10) and s. 48.4(20)), so they come on top of the criminal case, not instead of it. How the 90 days and the impound work in practice, and how they fit with a later conviction, is covered in our guide to what happens to your licence and car right away.

What are the penalties for refusing?

The offence is hybrid: section 320.19(1) lets the Crown proceed by indictment or by summary conviction, and the minimum penalties apply either way. Our page on what the Crown's choice between summary and indictable changes explains the difference for appeals and record suspensions.

Is a refusal punished more harshly than a high reading?

For a first offence, it often is, at least on the fine. Section 320.19 sets a $1,000 minimum fine for a first over 80 offence, rising to $1,500 if the blood alcohol concentration was 120 to 159 mg of alcohol in 100 mL of blood, and to $2,000 at 160 mg or more (s. 320.19(3)). A first refusal carries the $2,000 minimum whatever you had to drink (s. 320.19(4)). So a refusal is fined at least as heavily as the highest reading the Code describes. The jail minimums for later offences, the maximum sentences and the prohibition periods are the same for both offences (ss. 320.19(1) and 320.24).

At the roadside, Ontario makes no distinction at all. A refusal and a reading of 0.08 or more both bring the 90-day suspension, the 7-day impound and the $550 penalty. Below 0.08 the picture is very different, and our page on a warn-range reading between 0.05 and 0.08 explains the shorter suspensions that apply there.

What changes the answer?

• Whether the demand was lawful. The offence is refusing a demand made under section 320.27 or 320.28, and each demand has its own conditions: reasonable suspicion for a roadside test (s. 320.27(1)), an approved screening device and a lawful stop for mandatory screening (s. 320.27(2)), and reasonable grounds to believe for an evidentiary breath or blood demand (s. 320.28(1)). If a condition was missing, there may be no valid demand to refuse. Our page on Charter applications to exclude evidence explains the related constitutional arguments.
• Whether you knew a demand was made. Section 320.15(1) requires that you knew a demand had been made. If you did not understand the officer, for example because of a language barrier, that can become a factual issue at trial.
• A reasonable excuse. The offence applies only to a failure or refusal "without reasonable excuse." A medical inability to comply is the kind of reason the Highway Traffic Act itself recognizes: it is one of only two grounds for appealing the 90-day roadside suspension (s. 50.1(2)(a)(ii)).
• An accident. If you knew of, or were reckless about, an accident causing bodily harm or death, the charge falls under section 320.15(2) or (3), with maximums of 14 years or life (ss. 320.2 and 320.21).
• Earlier convictions. A second offence brings a 30-day minimum jail term and a longer prohibition (ss. 320.19(1) and 320.24(2)), and in Ontario a second conviction within 10 years means a three-year suspension (Highway Traffic Act s. 41(1)(g) and (3)).
• A treatment program before sentencing. With the consent of the prosecutor and the offender, a court can delay sentencing so the offender can attend a treatment program approved by the province. If the program is completed, the court is not required to impose the minimum punishment or the prohibition, but it cannot grant a discharge (s. 320.23).
• Your status in Canada. Because the maximum is 10 years, a conviction can matter for immigration. Read how a criminal conviction can affect permanent resident status, and ask an immigration lawyer about your own situation.

A worked example

For example, imagine Arash, who lives in Richmond Hill and is pulled over by York Regional Police at a holiday check on Yonge Street late one evening. The officer has an approved screening device and makes a mandatory screening demand. Arash is nervous, his English is limited, and he tells the officer he will not blow. The officer treats that as a refusal and arrests him.

That night his licence is suspended for 90 days and his car is towed for seven days, with the towing and storage costs to be paid before the impound facility releases it. He is charged under section 320.15 and released with a date at the Newmarket courthouse; our page on how criminal cases work in York Region explains where his case will be heard.

If Arash were convicted as a first offender, the court would have to impose at least a $2,000 fine and a driving prohibition of at least one year, and Ontario would suspend his licence for one year. His lawyer would start with the disclosure: whether the officer had the device on hand and stopped him lawfully, how the demand was worded, whether Arash understood it, and what any video shows. Our guide to criminal disclosure in Ontario explains how that file arrives. This is a hypothetical walk-through, not a prediction of any result.

What mistakes do people make?

1. Refusing to avoid a high reading. The first-offence minimum fine for a refusal, $2,000, already equals the minimum for the highest reading band (s. 320.19(3) and (4)).
2. Treating a half-hearted attempt as safe. The offence covers failing to comply as well as refusing, so a sample that is not genuinely given can lead to the same charge.
3. Driving during the 90 days. Driving while suspended is a separate provincial offence with a fine of $1,000 to $5,000 for a first offence (Highway Traffic Act s. 53(1)), and police must impound the vehicle again for seven days (s. 55.2(1)).
4. Counting on an appeal of the suspension. An appeal of the 90-day suspension to the Licence Appeal Tribunal is limited to two grounds: you are not the person to whom the section 320.28 demand was made, or you could not comply with the demand for a medical reason (s. 50.1(2)). The suspension continues while the appeal is pending (s. 50.1(7)).
5. Forgetting the car's owner. The impound costs are a debt of both the owner and the driver, and the owner can sue the driver to recover the costs and losses of the impoundment (s. 48.4(16) and (17)).

What to do this week

1. Read the suspension statement and the impound notice. Note when the 90 days end and where the vehicle is held.
2. Do not drive. Wait until the suspension is over and your licence has been reinstated.
3. Plan for the vehicle. It is released to its owner when the seven days end, once the towing and impound costs are paid (s. 48.4(2) and (14)). Keep every receipt.
4. Write down the stop while it is fresh. Record the time, what the officer said, what you said, whether you understood, and any health problem that affected your breathing.
5. Gather medical records if a condition made a sample difficult, and keep them for your lawyer.
6. Note your court date and get advice before it. If you are more at ease in Persian, our guide for Persian-speaking people charged in the GTA explains how we work.

Frequently asked questions

Will a refusal conviction give me a criminal record?

Yes. A conviction under section 320.15 is a Criminal Code conviction, the same as one for impaired driving. A record suspension may be possible later, once the waiting period has passed; see how long you wait to apply for a record suspension.

Can police demand a breath sample if they have no reason to suspect I was drinking?

For a roadside screening sample, yes, if the officer has an approved screening device and is lawfully exercising a power, such as a traffic stop (s. 320.27(2)). Whether the stop itself was lawful is a separate question your lawyer can review.

Can I refuse a blood test?

A blood demand is made under section 320.28, so refusing it without a reasonable excuse is the same offence. The Code allows blood to be taken only by a qualified medical practitioner or qualified technician, and only if they are satisfied that taking it would not endanger your health (s. 320.28(6)).

Does refusing a drug test count the same way?

Yes. Demands for drug screening, an evaluation by an evaluating officer, or oral fluid, urine or blood are all made under sections 320.27 and 320.28. A refusal is charged under section 320.15 and carries the same penalties, and Ontario's roadside suspension applies to refusing an evaluation as well (Highway Traffic Act s. 48.3(3)).

Is the $2,000 fine the most I could pay?

No, it is the minimum for a first offence. On a summary conviction the maximum is a $5,000 fine, up to two years less a day in jail, or both, and the provincial penalty and reinstatement fee come on top of any court fine.

Will I need an ignition interlock after a refusal conviction?

Ontario's interlock rules apply after Criminal Code impaired driving convictions, and the province's conviction-time suspensions apply to refusals under section 320.15. Our page on driving sooner with an ignition interlock explains the program, its streams and its eligibility rules.

Getting help

Gambriani Law PC defends refusal and impaired driving charges in courts across Ontario, including Toronto, York Region (Newmarket), Peel (Brampton), Durham Region, Barrie and Windsor, in English and Farsi. Call +1 647 970 3370 or reach us through the contact page.

This page is general information about refusing a breath or drug test in Ontario, not legal advice about your case.