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DUI Refusal in Canada: No Right to Lawyer at Roadside

DUI Refusal Shocker: No Right to Lawyer at Roadside

The Surprising Reality of Canadian DUI Law

Did you know that if a police officer demands a breath sample at the roadside, you do not have the right to speak with a lawyer first? This is the reality in Canadian DUI law that most people aren’t aware of.

In this blog post, I’m going to cover what you need to know about refusing to take a breath sample. And, I’ll reveal the critical moment when your right to speak with a lawyer kicks in – and it’s not when most people think.

When Can Police Demand a Breath Sample?

First, let’s look at when police can demand a breath sample. At the roadside, they can demand a sample into an approved screening device if they have reasonable suspicion that you have alcohol in your body within the last 3 hours and were operating a vehicle.

No Right to Lawyer at Roadside

Now, here’s the surprising part: if you’re asked to provide a breath sample at the roadside, you do not have the right to consult a lawyer before complying with the breath demand. Many people assume they can speak with a lawyer first, but that’s not the reality in Canadian DUI law.

When Does Your Right to a Lawyer Kick In?

Here is when your right to consult a lawyer does kick in. It’s when you’re arrested or taken to a police station or hospital for further testing on the suspicion of a DUI. At that time, your right under Section 10(b) of the Canadian Charter of Rights and Freedoms kicks in and you have the legal right to speak with a lawyer.

The legal system in Canada takes your right to speak with a lawyer very seriously. If you don’t speak with a lawyer, your DUI case may get dismissed even if you’re guilty.

Consequences of Refusing a Breath Test

So, what are the consequences of refusing a breath test? These are the same consequences as if you were found guilty of blowing over 80. For a first offense, you’re looking at mandatory minimum fines, license suspension, a criminal record and in serious situations, potential jail time.

Exceptions to Refusing a Breath Test

Now, are there any exceptions where you can refuse? Well, there are some limited exceptions, such as having a medical condition that makes it physically impossible to provide a sample, recent oral surgery, or severe mental impairment. But the threshold for these exceptions is high, and it’s generally advisable to comply with a lawful breath demand unless there are compelling reasons not to.

The Bottom Line on DUI Refusal in Canada

In summary, refusing a lawful breath test demand from police in Canada can result in serious consequences. And remember, you don’t have the right to speak with a lawyer before providing a sample at the roadside – that right only applies after an arrest or when you’re taken for further testing.

Can I speak to a lawyer before providing a breath sample at a roadside stop in Canada?

No, if a police officer demands a breath sample at the roadside, you do not have the right to consult a lawyer before complying with the breath demand. The right to speak with a lawyer only applies after an arrest or when you're taken for further testing.

What are the consequences of refusing a breath test in Canada?

Refusing a lawful breath test demand in Canada can result in the same consequences as being found guilty of driving over the legal limit (80mg/100ml). These include mandatory minimum fines, license suspension, a criminal record, and potential jail time in serious situations.

The Ontario DUI Arrest Test

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Do You Want to Keep Driving?
Dan Joffe, lawyer, partner Nextlaw Ontario

My team uses forensic analysis to determine whether your Charter rights were violated. If you have been charged with DUI, book a free call that can change everything

Do you want to avoid a DUI Charge?

My team uses forensic analysis to determine whether your Charter rights were violated. If you have been charged with DUI, book a free call that can change everything

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About Dan Joffe, Partner

Daniel holds a JD (LLB) / MBA from Osgoode Hall Law School & the Schulich School of Business at York University, Toronto. Dan is a licensed lawyer in the Province of Ontario.

The Ontario DUI Arrest Test™

The 60-Second Ontario DUI Arrest Test assesses the nature of the arrest in order to determine if your charges may get withdrawn.

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Next Law publishes these articles and videos as a service to our website visitors for general informational purposes only. These materials do not, and are not, intended to, constitute legal advice. You should not act upon any such information without seeking professional counsel.