Charged with Refuse to Provide Sample (Fail to Provide)?
Charge of Refuse (Fail to provide) Breath Sample is laid when a police officer demands that you provide a breath sample either into a roadside screening device or into an approved instrument.
What is an approved screening device?
Approved screening device is a small gadget that police uses on the roadside to check sobriety. Until recently, these devices almost exclusively were Drager Alcotest 7410 GLC. Now they are being replaced by Alcotest 6810, which is a more modern and sophisticated model. These devices are programmed to show a “FAIL” at more than 100mg of alcohol per 100ml of blood. (This is to make sure that you were over 80 mg)
When can police demand that I blow into the Alcotest (approved screening device)?
The police does not need a lot in order to issue the demand. They need to merely form a reasonable suspicion that you have some alcohol in your body. (This is much less than they need to charge you with Impaired). Usually that is being achieved through either getting you to admit that you have been drinking today, or because you have a smell of alcohol on your breath. If there was no smell of alcohol and no admission, it is quite possible that the demand was unlawful and if so, fail to comply with such demand would not be an offence.
What is an approved instrument?
An approved instrument is a larger machine that is supposed to be able to determine the concentration of alcohol in your blood with high degree of reliability. The machines that are currently in use in Ontario are Intoxilyzer 8000C. They replaced the older model called Intoxilyzer 5000. These machines, if properly calibrated, have less than 10% margin of error.
When can police demand that I provide a sample of breath into Intoxilyzer?
The police has to have reasonable and probable grounds to believe that you have either committed an offence of driving while Impaired or an Over 80. Grounds for Over 80 are based on a “Fail” shown by the roadside screening device. Grounds for Impaired are formed based on observations of indicia of impairment, and can be even based on a hearsay (for instance if the officer received a radio call regarding some bad driving, that information can be used together with direct observations in order to issue an Intoxylizer demand).
So how do you defend these charges?
Refuse or Fail to provide is often successfully defended on the basis of lack of understanding (language and other issues), breach of rights to counsel or lack of reasonable and probable grounds for breath demand, just to name a few available defences.