Is Refusing to Blow worse than a DUI in Ontario?

Legally, the penalties are virtually identical, but the mandatory minimum fine for a first-time refusal ($2,000) is higher than the minimum fine for blowing in the lower "Over 80" range ($1,000). Furthermore, it is often harder to defend a refusal because the Crown does not have to prove you were actually drunk—only that you didn't follow the order.

Can I get my licence back before the 90-day suspension is over?

In almost all cases, no. The 90-day Administrative Driver’s Licence Suspension (ADLS) is an immediate provincial sanction that is very difficult to appeal unless there has been a significant case of "clerical error" or mistaken identity.

What if I tried to blow but couldn't because of anxiety?

Severe anxiety or a panic attack can sometimes be a "reasonable excuse." However, this usually requires a medical professional to testify that your physical state at the time of the stop made it impossible for you to provide a sample.

Does a Refusal to Blow charge result in a criminal record?

Yes. If you are convicted in court, you will have a permanent criminal record under the Criminal Code of Canada, which can affect your ability to travel to the U.S. and your future employment prospects.

Can the police demand a breath sample at my house?

Yes, under Section 320.27, if the police have reasonable grounds to believe you operated a vehicle while impaired within the preceding three hours, they can make a demand even if you have reached your destination.

Will I have to use an Ignition Interlock device?

Yes. If convicted of a refusal in Ontario, you will be required to participate in the Ignition Interlock program as a condition of your licence reinstatement.

What if the officer didn't tell me I could call a lawyer?

For a roadside test, they don't have to. For a station test (Intoxilyzer), they must inform you of your right to counsel. If they failed to do so, this is a major Charter violation that could lead to your charges being dropped.

Will I go to jail for a first-time refusal?

For a first offence without aggravating factors (like an accident or high speeds), jail time is not mandatory. However, if it is your second offence within a 10-year period, there is a mandatory minimum of 30 days in jail.

Can a refusal charge be "dropped" to a careless driving charge?

In some jurisdictions in Ontario, a prosecutor may agree to a "plea bargain" where the criminal charge is withdrawn in exchange for a plea to "Careless Driving" under the Highway Traffic Act. This depends heavily on the strength of the evidence and the skill of your defence lawyer.

Refusal Charge Lawyer Ontario: Penalties & Defences

Q: I offered to give blood instead of breath; why was I still charged?

In Canada, the police officer—not the driver—chooses the type of sample (breath, blood, or oral fluid). Unless you have a valid medical reason why you cannot provide breath, refusing to blow while offering a blood sample is still legally considered a refusal.

Refusal to Blow in Ontario: 2026 Penalties & Defences

In Ontario, the penalty for refusal to blow in 2026 includes an immediate 90-day licence suspension and an administrative penalty. If convicted, a first offence carries a mandatory $2,000 fine and a 1-year driving prohibition. However, defences such as medical impossibility and Section 10(b) Charter violations can, depending on the facts, affect how a case is resolved.

Facing a charge for "Refusal to Comply with a Demand" (commonly known as Refusal to Blow) is often more stressful than a standard DUI. In Ontario, the legal landscape shifted significantly on January 1, 2026, with the provincial government implementing even stricter administrative penalties and longer "look-back" periods for alcohol-related driving occurrences.

If you have been charged under Section 320.15(1) of the Criminal Code, you are likely discovering that the law treats a refusal just as seriously—and in some cases, more severely—than blowing over the legal limit.

What is "Refusal to Blow" Under Canadian Law?

In Ontario, a "refusal" charge isn't just about saying "no." It encompasses any failure or refusal to comply with a lawful demand made by a peace officer to provide a breath, blood, oral fluid, or urine sample.

1. The Roadside Demand (ASD)

Under Section 320.27(2) of the Criminal Code, police in Ontario can demand a breath sample from any driver they have lawfully stopped, even if they have no reasonable suspicion that the driver has alcohol in their system. This is known as Mandatory Alcohol Screening (MAS).

2. The Station Demand (Intoxilyzer)

If you fail a roadside test or if an officer has reasonable grounds to believe your ability to drive is impaired, they will demand that you accompany them to a police station to provide a sample into an evidentiary breath instrument (the Intoxilyzer).

Key Legal Fact: You do not have the right to speak to a lawyer before providing a roadside breath sample. However, you do have the right to counsel before providing samples at the police station.

New for 2026: Tougher Ontario Penalties

As of 2026, Ontario has updated the Highway Traffic Act (HTA) to increase the pressure on drivers. These administrative penalties are separate from—and in addition to—any criminal court outcome.

Administrative Penalties (Immediate)

Even before you are found guilty in a court of law, a refusal triggers immediate "Administrative Driver’s Licence Suspensions" (ADLS):

90-Day Licence Suspension: Effective immediately at the roadside.
7-Day Vehicle Impoundment: Your vehicle is towed and stored at your expense.
Administrative Penalty: An administrative monetary penalty applies.
Reinstatement Fee: A fee is payable to get your licence back after the suspension.

Criminal Conviction Penalties (The Courtroom)

If you are convicted in criminal court for a first-time refusal, the mandatory minimum penalties are often harsher than those for a low-level "Over 80" charge. The criminal penalties for a refusal conviction in Ontario are strictly tiered. A first-time offence carries a mandatory minimum fine of $2,000 and a driving prohibition of at least one year. If you are facing a second offence, the law mandates a minimum of 30 days in jail and a two-year driving prohibition. For a third or subsequent offence, the penalties escalate further to a mandatory minimum of 120 days in jail and a three-year driving prohibition.

Note: The 2026 legislative updates have extended the "look-back" period to 10 years. This means if you had a prior impaired-related occurrence in 2017, your 2026 refusal could be treated as a second offence.

Why is a Refusal Charge Harder to Fight?

Many drivers mistakenly believe that by not providing a sample, they are depriving the Crown of evidence. In reality, the Crown does not need to prove you were impaired to convict you of refusal. They only need to prove:

The officer made a lawful demand.
You failed or refused to provide a sample.
You intended to refuse.

This "disobedience" charge is often technically simpler for the Crown to prove than impairment, which is why having an Ontario criminal defence lawyer is critical.

Strategic Defences for Refusal to Blow Charges

While the law is strict, it is not absolute. To secure a conviction, the police must follow the procedures outlined in the Canadian Charter of Rights and Freedoms and the Criminal Code.

1. The "Reasonable Excuse" Defence

Section 320.15(1) specifies that an offence is committed when someone refuses "without reasonable excuse." What qualifies as "reasonable" is interpreted very narrowly by Ontario courts.

Medical Conditions: Severe respiratory issues (like advanced asthma or COPD) that make it physically impossible to provide a sufficient volume of breath.
Psychological Distress: A proven, acute panic attack that prevented compliance (this often requires expert medical testimony).
Language Barriers: If the driver truly did not understand the demand due to a lack of English or French proficiency, and no effort was made to bridge the gap.

2. Charter Rights Violations

The most common and effective defences often involve "Section 8, 9, or 10(b)" Charter challenges:

Section 10(b) (Right to Counsel): For station-level demands, if the police did not provide you with a meaningful opportunity to speak to a lawyer of your choice, the refusal may be excused.
Section 8 (Unreasonable Search): If the demand itself was unlawful (e.g., the officer did not have the device "at the ready" for a roadside demand), the request for your breath might be deemed an unconstitutional search.
"As Soon as Practicable": The law requires the police to make the demand and take the samples immediately. If there was an unexplained 20-minute delay at the roadside before the test was offered, the demand may no longer be lawful.

3. Technical Malfunctions

If you made a sincere effort to blow into the device but it failed to record a sample (a "deficient sample" result), the defence may argue that the device was poorly calibrated or that the officer misinterpreted a "failure to provide" as a "refusal."

The Hidden Costs: Beyond the Fine

A criminal conviction for refusing to blow in Ontario carries "collateral consequences" that far outweigh the initial $2,000 fine.

1. "Back on Track" Program

All drivers convicted of an alcohol-related offence must complete Ontario's Back on Track remedial program. It has a program fee and can take many months to complete.

2. Ignition Interlock Requirements

Upon getting your licence back, you will likely be restricted to driving vehicles equipped with an Ignition Interlock device (a breathalyzer wired to your car's starter) for at least one year. The installation and monthly leasing fees are an ongoing cost, usually over a thousand dollars a year.

3. High-Risk Insurance Rates

A refusal conviction stays on your driving record for years. You will likely be moved to "Facility Association" or high-risk insurance, where premiums can rise sharply.

4. Travel and Employment

A criminal record for refusal can make you "inadmissible" to certain countries, including the United States, and can prevent you from passing background checks for jobs in finance, healthcare, or government.

Common Myths About Ontario Breath Tests

Myth: "If I wait 15 minutes, the alcohol will dissipate."

Truth: Police are trained to wait if they suspect "mouth alcohol" (recent consumption). However, waiting or stalling is often interpreted as an "equivocal refusal," which can lead to an immediate charge.

Myth: "I can choose to give blood instead of breath."

Truth: You do not have the right to choose the medium of the test. If the officer demands breath, you must provide breath unless you have a valid medical reason why you cannot.

Myth: "They can't test me if I'm on my own driveway."

Truth: The law applies to "conveyances," which include vehicles on private property, parking lots, and even boats. If you had "care or control" of the vehicle, the demand is lawful.

What to Do If You've Been Charged

The 90-day administrative suspension starts the moment you are charged. You only have a limited window to secure legal advice and prepare for your first court appearance.

Do Not Post on Social Media: Anything you say online can be used by the Crown to show your state of mind or intent.
Request the Disclosure: Your lawyer will obtain the "disclosure" (the police reports and video footage) to see if the officer followed every step of the legal procedure.
Act Quickly: In Ontario, court dates for driving offences move fast. Missing a date can result in an additional charge of "Failure to Attend Court."

Conclusion: Don't Face the 2026 Laws Alone

The 2026 updates to Ontario's driving laws reflect a "zero tolerance" culture. A refusal to blow is not a minor traffic ticket; it is a life-altering criminal event. However, a charge is not the same as a conviction. Between technical device failures, Charter violations, and procedural errors, there are many avenues a legal professional can explore to protect your future.

If you have been charged with Failure or Refusal to Comply, the clock is ticking on your 90-day administrative suspension. Contact our office (289-652-0529) today for a confidential consultation.

DISCLAIMER:

The information provided in this blog is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is established through this writing. You should consult with a qualified attorney for advice tailored to your specific situation. The lawyer and their firm disclaim any liability arising from reliance on this blog or any other content on this website.

Questions about this topic? See our page on impaired driving and refusal charges in Mississauga, or call (289) 652-0529.

Frequently Asked Questions