Refusing to take a breathalyzer test in Markham is a serious criminal offence called ‘Failure or Refusal to Comply.’ It is generally treated more harshly than impaired driving itself, resulting in an automatic 90-day licence suspension, a mandatory minimum $2,000 CAD fine, and a permanent criminal record.
There is a dangerous myth circulating among drivers that if you are pulled over after a few drinks, refusing to blow into the breathalyzer is the smartest way to avoid a DUI. In reality, Canadian law has completely closed this loophole. Whether you are stopped at a R.I.D.E. checkpoint on Steeles Avenue or pulled over for a broken taillight near CF Markville, the York Regional Police have broad powers to demand a breath sample. Refusing to comply with this demand will not save you from a criminal charge; it will instantly make your legal situation much worse.
Under Canada’s Mandatory Alcohol Screening (MAS) laws introduced in 2018, police officers no longer need ‘reasonable suspicion’ that you have been drinking to demand a roadside breath sample. If you are legally pulled over for any reason, they can demand you blow into an Approved Screening Device (ASD). Knowing what happens if you refuse a breathalyzer test in Markham is critical, as this distinct criminal offence carries some of the steepest mandatory minimum penalties in the Criminal Code.
Step-by-Step Process: How a Refusal Charge Unfolds in Markham
A refusal charge happens incredibly fast on the side of the road. Understanding the sequence of events can help you realize why cooperating with the police is legally required.
Step 1: The Lawful Police Demand
The process starts when a York Regional Police officer demands that you provide a breath sample. They will present a handheld ASD and instruct you on how to blow into the tube. You do not have the right to call a lawyer before taking this roadside test. Delaying the test by demanding a lawyer can actually be legally interpreted by the officer as a refusal.
Step 2: The Act of Refusal or ‘Faking It’
A refusal can be obvious, such as aggressively saying ‘No, I will not blow.’ However, many people are charged with refusal for ‘faking’ the test. This includes lightly puffing, sucking in air, or stopping before the machine registers a reading. If the officer believes you are purposefully failing to provide a proper sample after several attempts, they will charge you with Failure to Comply. 😡
Step 3: Immediate Arrest and Vehicle Impoundment
The moment you are charged with a refusal, you face the exact same provincial penalties as if you blew over the legal limit. You are immediately arrested, handcuffed, and read your rights. Your driver’s licence is instantly suspended for 90 days (the ADLS program), and your vehicle is towed and impounded for 7 days at your own expense.
Step 4: Facing the Criminal Charge in Court
You will be released with a court date at the Newmarket Courthouse. Your criminal defence lawyer will need to request the police dashcam and bodycam footage to see if the officer’s demand was lawful and if the machine was operating correctly. Defending a refusal charge is highly technical, often focusing on whether you had a valid medical excuse (like severe asthma) that prevented you from providing a sample.
How Much Are the Penalties for Refusing a Breathalyzer?
The financial penalties for refusing a breath sample are purposefully designed to be harsher than a first-time Impaired Driving conviction to discourage drivers from trying to hide their blood alcohol level.
| Penalty or Requirement | Cost or Consequence in CAD |
|---|---|
| Mandatory Minimum Fine (1st Offence) | $2,000 (Double the $1,000 minimum for blowing Over 80) |
| Criminal Driving Prohibition | Mandatory minimum 1-year Canada-wide ban |
| ‘Back on Track’ Remedial Program | $634 mandatory fee for the MTO education program |
| Ignition Interlock Device Installation | Approximately $1,500+ per year once you regain your licence |
How Long Does the Process Take?
A refusal charge triggers immediate consequences and leads to a lengthy journey through the Ontario justice system.
- Immediate Suspension: Your licence is suspended for 90 days right on the side of the road.
- Court Process: Fighting a refusal charge at trial generally takes 9 to 18 months to complete.
- Criminal Record: If convicted, you will have a permanent criminal record unless you apply for and receive a record suspension (pardon) from the Parole Board of Canada, which takes at least 5 years after your sentence is fully served.
Frequently Asked Questions (FAQ)
Can I demand a blood test instead of the breathalyzer?
No. Under Canadian law, you do not get to choose how the police test your sobriety. If an officer lawfully demands a breath sample, you must provide one. Refusing the breathalyzer in favour of a blood test is still a criminal refusal.
What if I have asthma and couldn’t blow hard enough?
A genuine medical condition, such as severe asthma or a lung capacity issue, can be a valid legal defence (a ‘reasonable excuse’) for failing to provide a sample. Your lawyer will require comprehensive medical records and potentially testimony from a respirologist to prove this in court.
Can the police test me if I am sitting in a parked car?
Yes. The law applies to anyone who has ‘care or control’ of a motor vehicle. If you are sitting in the driver’s seat of a parked car in a Markham parking lot with the keys nearby, you can still be arrested for impaired driving or refusal.
Is a refusal charge a summary or indictable offence?
Failure to Comply is a ‘hybrid’ offence in Canada. The Crown Attorney can choose to proceed summarily (for standard first-time offences) or by indictment (for severe cases, especially those involving accidents or prior convictions), which carries much higher maximum jail sentences.
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