If you fail a breathalyzer test in Ottawa, remain calm and exercise your right to silence. You will be arrested and given a 90-day licence suspension. Demand to speak with a criminal defence lawyer immediately, but do not physically resist the police or refuse the mandatory breath tests at the station.
A night out in the ByWard Market or a dinner in Kanata can quickly turn into a nightmare if you are pulled over and asked to blow into a roadside breathalyzer. Failing this Approved Screening Device (ASD) test means your blood alcohol concentration is suspected to be “Over 80” (above the legal limit in Canada). The panic sets in instantly, but how you react in these crucial first minutes can significantly impact your future legal defence.
It is vital to understand that an impaired driving charge is not a simple traffic ticket; it is a serious criminal offence under the Criminal Code. 📋 Any statements you make, apologies you offer, or physical resistance you put up will be recorded by the Ottawa Police Service and used against you. Your best course of action is to stay quiet and seek professional legal counsel immediately.
Step-by-Step Process in Ottawa
When you register a “FAIL” on the roadside device, the situation moves very quickly from a simple traffic stop to a formal criminal arrest. Knowing what the police are legally required to do—and what you are legally required to do—is the foundation of protecting your rights.
Step 1: Exercise Your Right to Silence
Upon seeing the fail result, the officer will read you your rights. The most important right you have under the Canadian Charter of Rights and Freedoms is the right to remain silent. 🤰 Do not try to explain how many drinks you had, when you stopped drinking, or where you were coming from. Simply state, “I wish to remain silent and speak to my lawyer.”
Step 2: Comply with the Arrest and Towing
You will be handcuffed, searched, and placed in the back of an Ottawa Police cruiser. Do not physically resist or argue with the officers. Your driver’s licence will be seized for a 90-day administrative suspension, and a tow truck will be called to impound your vehicle for 7 days. You cannot stop this process at the roadside.
Step 3: Demand to Speak with a Lawyer
Once you arrive at the local police station (often the central cellblock on Elgin Street), the police must provide you with a phone and privacy to contact a lawyer. 📞 You can call a private criminal defence law firm or use the free duty counsel service provided by Legal Aid Ontario. Do not make any decisions until you have spoken to legal counsel.
Step 4: Take the Evidentiary Breath Test
After you have had the opportunity to speak with a lawyer, the police will demand that you blow into a larger, more accurate machine called an Intoxilyzer. You generally must comply with this demand. Refusing to blow into the Intoxilyzer at the station is a separate criminal offence that carries the exact same penalties as failing the test itself.
How Much Does it Cost in Ottawa?
The financial consequences of failing a breathalyzer begin the moment the tow truck arrives. Even before you step foot inside a courtroom, you will face significant out-of-pocket expenses. Current estimates for 2026 include:
- Immediate Impound Fees: Releasing your car after the mandatory 7-day impound in Ottawa will cost at least $800 to $1,200 CAD.
- Licence Reinstatement: ServiceOntario requires a $281 CAD fee to lift your initial 90-day roadside suspension.
- Legal Retainers: Hiring an experienced criminal defence lawyer to review your disclosure and fight the “Over 80” charge generally costs between $3,500 and $10,000+ CAD.
- Future Insurance Increases: If convicted, high-risk auto insurance will add thousands of dollars to your yearly expenses.
How Long Does the Process Take?
The night of the arrest is only the beginning of a long legal journey. 🕑 The Ottawa justice system is heavily backlogged, meaning your case will linger for months before a resolution is reached.
| Phase of the Process | Estimated Timeline |
|---|---|
| Roadside Stop and Arrest | Usually takes 30 to 60 minutes |
| Testing at the Police Station | 2 to 4 hours before you are released |
| First Court Appearance | Scheduled 3 to 6 weeks after your arrest |
| Trial or Resolution | Typically takes 9 to 18 months |
Frequently Asked Questions (FAQ)
Can I refuse the roadside breath test to avoid failing?
No. Refusing the roadside Approved Screening Device (ASD) without a valid medical excuse is a criminal offence. The penalties for “Refusal” are identical to the penalties for an “Over 80” conviction.
Will I be kept in jail overnight?
For a first-time impaired driving charge without an accident or injuries, the police will usually release you on an Undertaking or Promise to Appear once you have sobered up, which typically takes a few hours.
What is the difference between impaired driving and “Over 80”?
“Impaired driving” is based on the officer’s observations of your physical state (slurred speech, poor driving). “Over 80” is a strict mathematical charge based solely on the breathalyzer registering over 80mg of alcohol per 100ml of blood.
Can I call my spouse instead of a lawyer?
The police are only constitutionally required to facilitate a private phone call with legal counsel. They may allow you to call a family member later to arrange a ride home, but your priority must be speaking to a lawyer.
Can my lawyer get the charges dropped if I failed the test?
Yes, it is possible. Breathalyzer machines must be calibrated correctly, and the police must strictly follow your Charter rights. If a lawyer finds technical errors or rights violations, the evidence may be thrown out.
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