The Highway Traffic Act is the law governing driving in Manitoba—and it ties into the Canadian Criminal Code. As part of this act, a peace officer (police officer) is allowed to administer a roadside test with an approved screening device. Refusal or failure to take this test can lead to criminal charges and a criminal record.

In this article, we’ll dissect the rules, regulations, and consequences of refusing to give a breath sample, saliva sample, or blood sample to an officer attempting to assess a driver’s sobriety:

What Is Refusal or Failure To Provide a Breath Sample?

In Manitoba, an approved screening device (ASD) is a breathalyzer designed to quickly assess the blood alcohol concentration (BAC) of a driver. Police can request that a driver take a breathalyzer test under a variety of circumstances, including:

• If they have a reasonable suspicion that the driver is under the influence
• During random checks (Checkstops)
• At a driver’s home (in certain circumstances)

Both the Winnipeg Police Service and the RCMP have broad powers to request tests using an ASD—they can also request more thorough tests, including blood samples.

Refusal to provide a breath, saliva or blood sample to police is just that—the police request that you take a test, and you say “no”. Failure is a bit different—this occurs if you’re unable to provide a breath sample. Too drunk to comply with instructions? That’s a failure rather than a refusal—but the consequences may be the same.

There are, of course, valid reasons to fail to provide a breath, saliva, or blood sample—but those go a little outside of the scope of this article and should be discussed in depth with a lawyer. 

Why Police Charge People for Both Refusing a Breathalyzer and for DUI

The idea behind the laws governing refusal or failure to provide a breath sample (or blood or saliva sample) is simple. The goal of roadside breath tests and similar tests is to determine whether or not a person’s blood alcohol content was above the legal limit while they were driving.

When a person refuses or fails to take this test, there’s no easy way to check their BAC—so the police officer is forced to assume they are over the legal limit, or they may end up driving inebriated and putting other motorists at risk.

Basically, the “fails or refuses” rule is to stop drunk drivers from gaming the system. The overall goal is to reduce the rates of impaired driving in Canada. 

Types of Roadside Samples and Requests

There are two different ways in which a police officer might request a test. They can request:

• A roadside test (a breath test)
• A test in the police station (a saliva or blood test)

These two types of tests are both used to detect impaired drivers and deter impaired driving, but they serve different functions. 

Roadside Tests

Roadside breath tests are used to determine a driver’s BAC. A driver can blow pass, warn, or fail on these tests, depending on their BAC. There are consequences to blowing a warn or a fail.

The advantage of these tests is that they’re relatively affordable; they’re also simple to administer and provide results almost instantly.

The breath test does have its disadvantages, though—it can only detect alcohol (not cannabis or other drugs), and it’s sometimes inaccurate. 

Police Station/Medical Facility Tests

These tests are administered if a roadside breath test cannot be administered or is insufficient. This can occur when:

• The ASD is broken.
• A crash has occurred, and the driver or drivers need medical attention immediately.
• The officer suspects the driver is under the influence of drugs other than alcohol.
• And other reasons

Refusal or failure to take these tests results in the same penalties as refusing to take a breathalyzer test.

Penalties for Refusing a Breathalyzer Test in Manitoba

Canada’s Criminal Code is strict when it comes to impaired driving, and refusing to take a breathalyzer test or a saliva or blood test is a criminal offence. The potential consequences for refusing or failing to take these tests include the following penalties:

• An automatic licence suspension
• Vehicle impoundment
• The mandatory installation of an Ignition Interlock device
• An impaired driver assessment
• A 10-level decrease on your Driver Safety Rating
• Possible criminal charges, with penalties including fines and imprisonment
• And more

Refusing a breath test or similar tests carries serious consequences—even a possible criminal record. The results may be more severe for a second offence (or any subsequent offences) than for a first offence—but they’re always serious. 

Need Legal Aid for a DUI Charge in Manitoba?

You may, however, have a valid reason for failing or refusing a breath test (or similar impaired driving tests). Even if you don’t think you made the right decision in refusing a test, you’ll always be making the right decision by calling a lawyer.

We can help you beat criminal charges and undo wrongs the legal system has done to you. Your best defence against these charges is a great defence lawyer. Need a DUI lawyer in Winnipeg? Call Matt Gould.