Muenz Law Office Calgary Criminal Defence Lawyer

Should you refuse to take a Breathalyzer test?

Alberta drivers who refuse to provide a Breathalyzer sample after being arrested on suspicion of drunk driving do not get off without any penalties. Officers can, and will, charge them for refusing to take the test.

So can there ever be a good reason for refusing to take a Breathalyzer test? If an arrest and licence suspension are imminent anyway, what does a driver have to lose by providing a sample?

There could be valid reasons for refusing, although this is not a recommendation for drivers to do so. Ultimately each driver has to face that decision on his or her own, as under Alberta law, drivers do not have the right to consult with a lawyer prior to being tested on the side of the road.

Perhaps you are concerned that your test will show a very high percentage of alcohol in your bloodstream. You may reason that it is better for the Crown to assume that your blood alcohol content was .08 than to have irrefutable evidence that it was much higher.

But a good criminal defence lawyer will be prepared to challenge the validity of your test results, including making sure that the maintenance logs for the machine have been properly recorded, certified and preserved.

Such was the case earlier this winter in Alberta when the Crown Prosecution Service issued a directive to staff regarding drunk driving charges that relied solely on Breathalyzer results. They wound up dismissing 17 charges against motorists because of abysmal record-keeping by one company in Ottawa that most Royal Canadian Mounted Police detachments use to maintain the Breathalyzer equipment.

The logs are key evidence for defence lawyers to refute allegations that their clients were driving while drunk. If the machines are not properly calibrated and maintained — and there are no records to back up the maintenance, or the records themselves are incomplete or inaccurate — acquittal on the charges can result.

So what should you do when faced with a RCMP officer demanding a Breathalyzer test? Most drivers wind up complying and taking their fight to the courtroom with a skillful and experienced defence lawyer ready to challenge any discrepancies in the logs or the test itself.

Source: CBC News, "Alberta withdraws certain drunk-driving charges," Meghan Grant, accessed July 15, 2016

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Muenz Law Office Calgary Criminal Defence Lawyer

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