If you register a “FAIL” on a roadside screening device in Toronto, you will be arrested immediately. You must comply with the demand to be transported to a police division for a formal Intoxilyzer test, but you have the crucial constitutional right to speak with a criminal defence lawyer in private before providing that official breath sample.
Understanding Roadside Screening in Ontario
Seeing the flashing red and blue lights of a Toronto Police cruiser in your rearview mirror is highly intimidating, especially if you have consumed alcohol 😬. In Ontario, police have broad powers to demand a breath sample at the roadside using an Approved Screening Device (ASD). Under Canada’s mandatory alcohol screening laws, an officer does not even need “reasonable suspicion” that you have been drinking to pull you over and demand a test .
If the small roadside machine reads “FAIL,” it means your blood alcohol concentration is suspected to be over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood (commonly known as “Over 80”) 🧐. At this exact moment, you are under arrest. How you handle the next few hours will critically impact your ability to defend yourself against a criminal charge .
Step-by-Step Process in Toronto
Whether you were pulled over on the Gardiner Expressway, near the Entertainment District, or in Etobicoke, the police procedure following a failed roadside test is strictly regulated by the Criminal Code 📍. Here is exactly what happens and what you should do .
Step 1: The Arrest and Rights to Counsel
Immediately after a “FAIL” reading, the officer will place you under arrest for Impaired Operation / Over 80 👮. They are legally required to read you your rights, including your right to retain and instruct counsel without delay. They will also read a formal “Demand” requiring you to accompany them to the station for an official breath test. Do not resist arrest or argue with the officer at the roadside. Remain polite and invoke your right to speak to a lawyer .
Step 2: Transport and Vehicle Impoundment
You will be placed in the back of the police cruiser and transported to the nearest Toronto Police division (such as 14 Division or 52 Division) 🚗. Meanwhile, your vehicle will be immediately towed and impounded for 7 days under the provincial Highway Traffic Act. You will also be handed a 90-day Administrative Driver’s Licence Suspension (ADLS) on the spot .
Step 3: The Private Lawyer Phone Call (Crucial)
Once at the station, before you are placed on the large Intoxilyzer machine, the police must provide you with a private room and a telephone to call a lawyer 📞. If you do not know a lawyer, you can speak to free Duty Counsel. This is your most important step. A lawyer will advise you on exactly what to say (or not say) to the police and explain your legal obligation to take the final breath test .
Step 4: The Official Intoxilyzer Test
After your phone call, a qualified breath technician will demand that you blow into a large machine called an Intoxilyzer 8000C 💬. You generally must comply with this test. If the machine confirms you are “Over 80,” you will be formally charged, fingerprinted, photographed, and usually released a few hours later under an Appearance Notice or an Undertaking (documents introduced under Bill C-75 to replace the outdated Promise to Appear) .
How Much Does it Cost in Toronto?
Even before you step into a courtroom, failing a roadside test triggers immediate financial penalties from the Ministry of Transportation (MTO) 💵.
| Immediate Expense | Estimated Cost in CAD | Details |
|---|---|---|
| Vehicle Towing & Impound (7 Days) | $300 – $600+ | Paid directly to the local Toronto tow yard to get your car back. |
| Licence Reinstatement Fee | $281 | Paid to ServiceOntario after your 90-day suspension ends. |
| Administrative Monetary Penalty (AMP) | $550 | Mandatory provincial penalty under O. Reg. 273/07 that must be paid to reinstate your licence. |
| Criminal Defence Lawyer | $3,500 – $10,000+ | Block fees to fight the actual criminal charge in court. |
- Future Costs: If convicted in court, you face a mandatory minimum fine of $1,000 CAD (which increases depending on your blood alcohol concentration), extreme auto insurance hikes, and mandatory enrollment in the CAMH-administered “Back on Track” remedial program, which costs exactly $894 CAD (while an administrative roadside suspension course costs $344 CAD).
How Long Does the Process Take?
The immediate police process at the station takes roughly 2 to 4 hours before you are released ⌛. Your Ontario driver’s licence is suspended immediately for 90 days. However, resolving the actual criminal charge in the Ontario Court of Justice is a lengthy process; it typically takes between 12 to 18 months to reach a trial date or negotiate a final resolution .
Frequently Asked Questions (FAQ)
Do I have the right to a lawyer at the roadside?
No. Under Canadian law, your right to counsel is temporarily suspended at the roadside. You must blow into the handheld screening device immediately when demanded. You only get to call a lawyer after you fail the test, are arrested, and are taken to the police station.
What if I refuse to blow into the roadside machine?
Refusing to provide a breath sample is a separate criminal offence under the Criminal Code. The penalties for refusal are exactly the same as if you blew “Over 80,” including an automatic 90-day licence suspension and a permanent criminal record if convicted.
Can I just call my spouse instead of a lawyer from the station?
While police may occasionally allow a quick phone call to family to arrange a ride home, your constitutional right is specifically to speak with legal counsel. Your spouse cannot give you legal advice. Always choose to speak to a criminal defence lawyer or Duty Counsel first.
Does a roadside “FAIL” mean I am automatically guilty in court?
No. The handheld roadside device is only used to form grounds for an arrest; its results are generally not used as evidence of your exact blood alcohol level at trial. The Crown Attorney relies on the results of the large Intoxilyzer machine at the station to prove you were “Over 80.”
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