Can I Refuse a Breathalyser Test in Canada? (Mandatory Alcohol Screening) (2026 Legal Guide) — Rules & Requirements
About this article
Sourced from Canadian federal statutes and official sources. Provincial information reflects each province's own legislation and court rulings. Written in plain language for general understanding — this is educational content, not legal advice. Our editorial standards
What is this right?
Short answer: No — refusing carries the same maximum penalty as failing the test itself. Mandatory Alcohol Screening (MAS), in force since 18 December 2018 under Criminal Code s. 320.27(2), means a police officer can demand a breath sample at any traffic stop without requiring reasonable suspicion of impairment.
The penalty regime for refusal under Criminal Code s. 320.15:
- Minimum penalty: $2,000 fine for first offence.
- Second offence: 30 days imprisonment minimum.
- Third offence: 120 days imprisonment minimum.
- Maximum: 10 years imprisonment if prosecuted by indictment.
- Driver's licence: automatic 1-year prohibition on first offence, increasing for repeats.
The penalties for refusal are equal to or harsher than the penalties for failing the test — Parliament's deliberate design to remove any incentive to refuse.
The only narrow defences: (a) the demand was unlawful (officer was not in lawful execution of duty); (b) you had a reasonable excuse such as medical incapacity to provide a breath sample (which the Crown can rebut with expert evidence).
The constitutionality of mandatory alcohol screening was upheld by lower courts and has not been overturned by the Supreme Court of Canada as of May 2026 — though Charter challenges continue.
When does it apply?
- You are driving (or have care or control of) a vehicle in Canada.
- A police officer makes a demand for a breath sample under Criminal Code s. 320.27.
What to Do When Police in Canada Demand a Breath Sample
- Provide the breath sample. Refusal is itself a criminal offence with the same penalties as failing.
- If you genuinely cannot provide a sample (asthma, COPD, recent oral surgery), tell the officer immediately and offer an alternative — most commonly a blood sample at a hospital. Document the medical reason and seek immediate medical evidence.
- Comply but preserve your defence. Ask: "Am I being detained?" and "What are my rights to counsel?" Note any irregularities — the officer's identification, the calibration record of the device, the timing.
- Get a lawyer immediately. Under Charter s. 10(b), you are entitled to consult counsel without delay before providing the formal evidentiary sample at the police station (the roadside screening device sample comes before counsel rights attach).
- Document everything immediately after: the time, location, officer's name and badge, the calibration certificate of the device, your physical condition.
What should you NOT do?
- Don't refuse the test. The penalties are equal to or worse than failing it, and refusal removes any defence on the substance of the alleged impairment.
- Don't argue with the officer at the roadside. The proper challenge is in court.
- Don't drive away. That is flight from police and a separate offence under Criminal Code s. 320.17.
- Don't drink anything after being stopped. Some defendants have tried this to confuse the test; it can support an obstruction charge.
- Don't make incriminating statements. Comply with the breath sample demand but otherwise remain silent until you have spoken to a lawyer.
About Police Encounters in Canada
If police stop, search, or arrest you in Canada, the Charter of Rights and Freedoms sections 7–14 protect you — citizen or not. Section 8 bars unreasonable search; section 9 bars arbitrary detention; section 10 gives you the right to know why you're being held and to call a lawyer without delay, including free duty counsel. The Criminal Code sets arrest powers in section 495. Charter section 24(2) lets courts throw out evidence police got by violating your rights.
Common Questions
What is the can i refuse a breathalyser test in canada? right in Canada?
Short answer: No — refusing carries the same maximum penalty as failing the test itself. Mandatory Alcohol Screening (MAS), in force since 18 December 2018 under Criminal Code s. 320.27(2), means a police officer can demand a breath sample at any traffic stop without requiring reasonable suspicion of impairment.The penalty regime for refusal under Criminal Code s. 320.15:Minimum penalty: $2,000 fine for first offence.Second offence: 30 days imprisonment minimum.Third offence: 120 days imprisonment minimum.Maximum: 10 years imprisonment if prosecuted by indictment.Driver's licence: automatic...
When does can i refuse a breathalyser test in canada? apply?
You are driving (or have care or control of) a vehicle in Canada.A police officer makes a demand for a breath sample under Criminal Code s. 320.27.
What should I do if police in Canada demand a breathalyser test?
Provide the breath sample. Refusal is itself a criminal offence with the same penalties as failing.If you genuinely cannot provide a sample (asthma, COPD, recent oral surgery), tell the officer immediately and offer an alternative — most commonly a blood sample at a hospital. Document the medical reason and seek immediate medical evidence.Comply but preserve your defence. Ask: "Am I being detained?" and "What are my rights to counsel?" Note any irregularities — the officer's identification, the calibration record of the device, the timing.Get a lawyer immediately. Under...
What mistakes should I avoid with can i refuse a breathalyser test in canada??
Don't refuse the test. The penalties are equal to or worse than failing it, and refusal removes any defence on the substance of the alleged impairment.Don't argue with the officer at the roadside. The proper challenge is in court.Don't drive away. That is flight from police and a separate offence under Criminal Code s. 320.17.Don't drink anything after being stopped. Some defendants have tried this to confuse the test; it can support an obstruction charge.Don't make incriminating statements. Comply with the breath sample demand but otherwise remain silent until you have spoken to a lawyer.