Never Say No to the Breathalyzer

At social gatherings I am often asked questions about legal matters – you know, the “my friend who has a problem” type of questions.

Even though drinking and driving is a criminal offence in Canada, people still ask me, “Should I blow into the breathalyzer?” And it is a timely question, as the July long weekend is upon us and many are preparing for big Canada Day celebrations. Holiday weekends often see increased police presence and check stops.

In Canada, if, while driving, you are stopped by the police who make a lawful demand of you to blow into a breathalyzer, and you don’t comply, you will be charged with the criminal offence of refusing a breathalyzer.

The penalties for refusing to provide a breath sample are harsh – as are the penalties for driving with higher than .08 blood alcohol content and impaired driving. The consequences upon conviction include fines, imprisonment, loss of your driver’s licence and a Canada-wide driving prohibition. To regain your licence you may have to participate in mandatory alcohol counselling and pay sharply higher insurance rates. In addition, you will have a criminal record.

Therefore when people call and ask, “Should I blow?” my answer is always “yes.” Not blowing will hamper the defences available to you if, in fact, you are drinking and driving, and it will not get you out of your predicament. Refusing to blow is not a wise choice.

It is very important to obtain strong and effective legal representation at the earliest opportunity.

In simple terms: If you (or your “friend”) are asked by an officer for a breath sample, give it. Saying “no” is a criminal offence.

By not blowing, you will not know if you were under the limit, perhaps resulting in no charge being laid. And if you are over the limit and refuse the breathalyzer, you compromise your defences.

The police do have to tell you that refusal is a criminal offence, and they may even describe the penalties for refusal. In providing this information, the police are not trying to trick you into taking the breathalyzer. Let your lawyer review whether the demand was lawful; do not make that assessment yourself.

If you have questions – even when being asked to provide a breath sample – exercise your right to legal counsel and make a call to counsel.

Marty Minuk is a skilled and experienced criminal and general litigation attorney based in Winnipeg. He can be reached at (204) 955-8504 or

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.