Markham Breath Sample Refusal Lawyer (s. 320.15 Failure to Comply)

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At a Markham R.I.D.E. stop the officer does not need to suspect you of anything before demanding a roadside breath sample. That has been the law across Canada since December 2018. Saying no is not a loophole. It is a separate criminal charge under section 320.15 of the Criminal Code, and for a first offence it starts at a $2,000 minimum fine, double the $1,000 floor that applies to a basic first over 80 reading. Whether the Crown can prove that charge depends almost entirely on the demand itself: which of the three demands you faced, whether it was lawful, and what actually happened in the minutes after it was made.

By Fadi Matthew Kazandji, Founding Partner, Kazandji Law. Updated July 2026.

The demand decides the case. Which one did you face?

Section 320.15(1) of the Criminal Code says that everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or section 320.28. Read that twice, because the whole prosecution lives inside it. The Crown is not proving you were drunk. It is proving that a lawful demand was made, that you knew about it, and that you failed or refused to comply with no reasonable excuse. Take away any one of those pieces and the charge fails.

That is why the first question we ask in every Markham refusal file is not what you drank. It is which demand you faced. There are three, they have different legal triggers, and they fail in different ways.

The demand	What the officer needs	Where it happens
Roadside screening demand (s. 320.27(1))	Reasonable grounds to suspect you have alcohol or a drug in your body and that you operated a vehicle within the preceding three hours. Covers an approved screening device sample, physical coordination testing, or approved drug screening equipment.	At the roadside, on the spot where you were stopped.
Mandatory alcohol screening (s. 320.27(2))	No suspicion at all. If the stop itself was lawful and the officer has an approved screening device in their possession, they can demand a breath sample from any driver. This is the R.I.D.E. line demand.	At the roadside, most often at checkpoints and traffic stops across Markham and York Region.
Evidentiary demand (s. 320.28)	Reasonable grounds to believe you committed an alcohol or drug driving offence within the preceding three hours. Requires samples on an approved instrument taken by a qualified technician, or blood samples where breath testing is impracticable.	At the police station, after arrest.

Each demand has its own weak points. A screening demand made without a device on hand raises immediacy problems. A suspicion based demand built on nothing more than the time of night invites a Charter challenge. An evidentiary demand grounded in a flawed roadside result inherits the flaw. The demand is not paperwork. It is the foundation of the charge, and foundations can crack.

What counts as refusing a breath sample?

A flat no is the obvious case, but most Markham refusal files are messier than that. Refusal can be words, or it can be conduct: walking away from the officer, rolling up the window and calling someone, stalling past the point of reasonable patience, or agreeing to blow and then never sealing your lips around the mouthpiece. Conditional answers cause more charges than outright defiance. Telling the officer you will blow only after you speak to your spouse, or only at the station, or only once you have read the law yourself is treated as a refusal, because compliance is not negotiable.

Failed attempts sit in their own category. If you blow and the device keeps rejecting the sample, police may treat it as a failure to comply. It can be charged that way, but repeated genuine attempts are not the same thing as saying no, and this is one of the most defensible refusal scenarios we see. The device logs every attempt. Video shows effort, coaching and technique. Medical records can show reduced lung capacity. Those files are won on evidence gathered early, which is why we tell clients to preserve everything and write down their memory of each attempt while it is fresh.

Remember also that knowledge is an element. The section says knowing that a demand has been made. A driver who genuinely did not understand that a formal demand was in play, because of language, hearing, or a chaotic roadside scene, has a direct answer to the charge, not a technicality.

The $2,000 math nobody explains at the roadside

The rest of the ledger tracks the over 80 offence almost line for line. The refusal charge is hybrid, which means the Crown can proceed summarily or by indictment, and the ceiling on indictment is 10 years. A second conviction carries a minimum of 30 days in jail. Each conviction after that carries a minimum of 120 days. A first conviction also brings a federal driving prohibition of one to three years, on top of everything Ontario does to your licence provincially.

And refusing does not stop the prosecution, because the refusal is itself the crime. Officers who watched you drive, smelled alcohol and heard your speech can still lay an impaired operation charge based on observation evidence alone, with no number attached. Plenty of drivers leave a Markham roadside carrying both counts. Where the stop follows a collision in which someone was hurt or killed, the Criminal Code has aggravated refusal offences under s. 320.15(2) and (3) with dramatically higher stakes.

If you are weighing all this after the fact, the honest summary is this: Parliament priced the decision to refuse deliberately high so that refusal never beats compliance. What matters now is whether the demand, the process and the evidence actually support a conviction. That is a genuinely open question in many files, and it is the question the rest of this page is about. For the charge refusal is usually measured against, see our Markham driving over 80 defence page.

Reasonable excuse is a narrow door

The section only excuses failures with a reasonable excuse, and clients often arrive believing their reason qualifies. Most do not. Disagreement with the officer is not an excuse. Believing the stop was unfair is not an excuse. Wanting to call your spouse, your parent or even your lawyer before blowing at the roadside is not an excuse, because the screening stage happens before your counsel rights are engaged. Distrust of the machine is not an excuse either.

What the law does recognize is genuine inability. A driver with severe asthma, chronic lung disease, recent chest trauma or an acute panic response may be physically unable to produce the sustained sample the device needs. Where that is real, it is a defence to be built, not just asserted. We look for a medical history that predates the stop, records created promptly afterward, device logs showing effort across attempts, and video that matches the story. A bare claim of inability, raised for the first time at trial with nothing behind it, rarely survives cross examination.

There is a practical lesson in how narrow this door is. If you are reading this within days of your charge, start assembling the medical side now. Book the appointment, get the lung function testing, ask for copies of everything. The excuse that wins is the excuse with paper behind it.

When do you get to call a lawyer?

This surprises almost everyone: at the roadside screening stage, generally you do not. The screening demand is designed to operate immediately, before you have a chance to consult counsel, and the courts have accepted that brief suspension of the right. So the officer at a Markham checkpoint who will not let you phone anyone before you blow into the screening device is not, on that fact alone, violating your rights.

The station is a different world. Once you are arrested and an evidentiary demand is made, your right to counsel under section 10(b) of the Charter is fully engaged. You must be told about it, you must be given a reasonable opportunity to reach a lawyer of your choice in private, and the police must generally hold off collecting evidence until you have had that opportunity. Failures at this stage are not cosmetic. If your calls were cut short, if you were left with a phone but no privacy, if you asked for a specific lawyer and were steered elsewhere, if hours passed unexplained, those facts feed directly into Charter litigation and can lead to evidence being excluded.

The line between the two stages is also where confusion breeds refusal charges. A driver who says at the roadside that they want a lawyer first is refusing, in law, even though the same words at the station would be a protected request. Part of our review in every file is mapping exactly where each statement happened, because location changes the legal meaning of the same sentence.

Your licence was gone before the charge was even sworn

Ontario does not wait for a courtroom. The moment you fail or refuse a demand, the province treats you exactly the way it treats a driver who blew over the limit: an immediate 90 day administrative driver licence suspension, a 7 day impoundment of the vehicle you were driving, and a $550 administrative penalty, followed by a reinstatement fee to get the licence back. Those figures come from Ontario impaired driving rules as updated on January 2, 2026, and they apply on every occurrence, not just the first.

Three things about that administrative layer matter for planning your next three months. First, it runs separately from the criminal charge, and beating the refusal count later does not refund the penalty or restore the lost licence days. Second, the impound attaches to the vehicle, not the owner. If you were driving your spouse's SUV or an employer's van, that vehicle sits in the pound for a week and the owner pays the towing and storage. Third, and most important, the 90 day suspension is a real suspension. Driving during it is a separate offence with painful consequences of its own, and York Region officers charge it regularly. If you are tempted to drive to work just this once, read our Markham driving under suspension page first, then arrange a carpool instead.

Ontario also layers repeat measures onto this administrative tier, including an education course after a second occurrence and treatment plus an interlock condition after a third. The administrative machine is relentless, which is one more reason the criminal charge deserves a real defence rather than a resigned guilty plea.

From a Markham stop to the Newmarket courthouse

Markham criminal charges do not stay in Markham, because Markham has no criminal courthouse. Every refusal count from a Markham stop, whether it began at a Highway 7 R.I.D.E. line or a routine pullover on McCowan Road, is prosecuted at the Newmarket courthouse at 50 Eagle Street West, which houses both the Ontario Court of Justice and the Superior Court of Justice for York Region. Bail, in the rare refusal file that needs a hearing, is heard in the same building.

The policing side is York Regional Police. Markham is served by 5 District at 8700 McCowan Road, and YRP runs its R.I.D.E. program year round, ramping up over the holidays, long weekends and special events with random check locations across the region. A refusal charge at any of those stops produces release paperwork with a first appearance date, and most early appearances now proceed virtually, so you will not necessarily drive to Newmarket for every date. What actually moves your case is the work between appearances: disclosure requests, review of the officer notes, the video, the device records, and then a Crown pre trial where resolution and trial issues get framed.

Deadlines hide in that paperwork. The suspension notice, the impound release date, the first appearance and any release conditions all carry their own clocks. Bring every page you were handed to your first consultation, ideally photographed and sent ahead of time.

How refusal charges get fought in York Region

Refusal prosecutions look simple from the outside. They are not. Because the offence is built entirely on process, every step of the process is a potential defence, and the Supreme Court of Canada has been active in exactly this space in recent years.

• The stop. Police powers to stop vehicles are broad but not unlimited, and the Supreme Court has recently patrolled their boundaries. If the stop that produced your demand was unlawful, everything that followed it is vulnerable.
• The demand. A mandatory screening demand requires an approved screening device actually in the officer's possession and contemplates an immediate sample. Demands made while everyone waits for a device to arrive, or demands whose wording wanders from the statute, invite challenge. Recent Supreme Court jurisprudence on roadside demand immediacy is a live tool in these files.
• The refusal itself. Was there a final, unequivocal refusal, or a confused exchange, a language gap, or a physical inability recorded as defiance in the notes? Device logs and video usually answer this better than anyone's memory.
• The station. Right to counsel breaches, described above, are among the most common and most consequential defects.
• The paper war. Full disclosure is your right, and gaps in notes, missing video and undisclosed device records all matter. Delay matters too: the Jordan framework presumptively caps an Ontario Court of Justice prosecution at 18 months from charge to the end of trial.

Not every file has a winning issue, and we will tell you honestly when yours does not. But nobody should plead guilty to a refusal count before a lawyer has read the disclosure against the statute, because this is an offence where the Crown case is only as strong as its weakest procedural link.

When the refusal follows a crash, the stakes change

Everything above describes the basic refusal offence. Parliament wrote two harsher versions for drivers who refuse after a collision. Under s. 320.15(2), refusing while knowing, or being reckless about whether, the vehicle was involved in an accident that caused bodily harm to someone is a separate and more serious offence. Under s. 320.15(3), the same refusal where the accident caused a death is more serious still. These aggravated tiers track the penalty structure of the other serious driving offences: a 14 year maximum where bodily harm is involved and a maximum of life imprisonment where death results, with mandatory minimums that begin at a $1,000 fine and climb through jail for repeat offenders.

The Crown does not get these tiers for free. It has to prove the connection to the accident and your knowledge or recklessness about it, which adds real litigation surface to the case. But the practical point for anyone charged after a crash on a Markham road is simple: an aggravated refusal count is not a paperwork offence, it is a serious indictable prosecution, and it needs senior counsel immediately, not after the first appearance.

These files also move differently. Collision reconstruction, hospital records and civil insurance exposure all run alongside the criminal charge, and statements made to one audience have a way of surfacing in front of another. Coordinating what gets said, when and to whom is half the job in the early weeks.

The paper we pull in every refusal file

Refusal prosecutions are built on documents, so the defence starts with a demanding disclosure request. The officer notes matter, but they are the polished version of events. We want the rawer layers underneath them.

• Video, all of it. Cruiser camera, body worn video where it exists, station booking video and breath room footage. The difference between refused to provide and could not provide often lives on tape.
• The device records. Which approved screening device was on scene, when it arrived, its test records for the shift and the officer's training on it. If the demand was a mandatory screening demand, whether the device was actually in the officer's possession when the demand was made.
• The timeline records. Dispatch and computer aided dispatch logs, radio traffic and cell records that let us rebuild the stop minute by minute. Immediacy problems and counsel delay problems are proven with timestamps, not arguments.
• The words used. The exact wording of the demand as recorded, any translation issues, and every statement attributed to you. The knowledge element and the alleged refusal both turn on precise words.

Disclosure fights are quiet, unglamorous and frequently decisive. When records are missing, were never created or were destroyed on schedule before anyone asked for them, that too becomes a litigation issue. The earlier the requests go out, the more there is left to preserve, which is one more argument for getting counsel involved in week one.

Your first week after a Markham refusal charge, in order

You cannot fix the roadside, but the week after it is yours, and it matters more than most clients expect.

• Day one. Photograph every document you were handed: the release paperwork, the suspension notice, the impound papers. Write out your own timeline of the stop while it is fresh, including times, locations, the words used and each attempt you made to comply. That private note is for your lawyer only.
• Day one to two. Solve transportation honestly. The 90 day administrative suspension is in force, and driving on it is a fresh offence that makes every future courtroom conversation worse.
• Day two to three. If a medical condition affected your ability to blow, see your doctor now and ask for records. Book lung function testing if breathing was the issue. Paper created this week is worth far more than paper created the week before trial.
• Day three to five. Track the impound timeline so the owner can retrieve the vehicle promptly, and warn them about the storage charges that accumulate daily.
• Before your first appearance. Retain counsel, send over the photographs and timeline, and let your lawyer start the disclosure and preservation requests. First appearances are administrative, but the preparation window in front of them is not.

None of this requires you to talk to police, and none of it commits you to any defence. It just keeps every option open, which in a process driven prosecution is exactly what early work is for.

If you are convicted

Sentencing on a first refusal conviction starts at the $2,000 minimum fine and a federal driving prohibition of one to three years. The prohibition ladder climbs steeply for repeat convictions, and the jail minimums, 30 days for a second offence and 120 days for each one after that, are mandatory. On indictment the exposure runs to 10 years, which the Crown reserves for genuinely aggravated circumstances.

Ontario then adds its own layer. A first criminal driving conviction brings a provincial suspension of at least one year, at least a year in the ignition interlock program once you are back on the road, and the Back on Track remedial program. Repeat convictions escalate within a 10 year window, up to lifetime suspension territory. The conviction also sits on records that employers, insurers and border officials read, and for many Markham clients those collateral consequences end up costing more than the fine ever did. All of it is why the plea decision deserves real analysis rather than resignation.

Refusal, over 80 and impaired driving are three different charges

People say drunk driving as if it were one charge, but the Criminal Code splits it into distinct offences, and the distinctions drive strategy. Impaired operation is about your ability to drive, proved through observation. Over 80 is about a number produced by an approved instrument within two hours of driving. Refusal is about non compliance with a lawful demand, no number required. You can face more than one from a single stop, though the law limits how many convictions can arise from the same transaction, and that limit becomes real leverage in resolution discussions.

Each charge also fails differently. An over 80 count dies through the machine rulebook. An impaired count dies through weak observation evidence. A refusal count dies through the demand and the process. If your stop produced multiple counts, start with our Markham DUI lawyer page for the full first 24 hours picture, see the Markham over 80 defence page for the breath testing fight, and for the province wide view of refusal law, our Ontario breath sample refusal page goes deeper on the case law.

Why Markham drivers call Kazandji Law

Kazandji Law defends impaired, over 80 and refusal files across York Region from our Thornhill office at 7191 Yonge Street, Suite 310, minutes from most of Markham, with additional offices in Toronto at 180 John Street, Unit 320, in North York and in Oakville. Founding partner Fadi Matthew Kazandji has built the firm's driving practice on the unglamorous work these cases actually require: reading device logs line by line, timing every stage of the stop against the statute, and litigating Charter issues when the process broke.

The practice runs the full width of Ontario driving law, from criminal counts at the Newmarket courthouse to Highway Traffic Act matters like careless driving at the provincial offences court, so your file gets planned around every court it touches rather than just one. Explore the rest of our Markham criminal defence practice, then call us. The consultation is free, and it is far more useful in week one than in month three.

Markham breath sample refusal FAQ

This page is general legal information for Ontario drivers, not legal advice about your specific situation. Criminal Code provisions described here are current to May 26, 2026, and Ontario administrative penalty figures reflect ontario.ca as updated January 2, 2026. Every case turns on its own facts. Kazandji Law, 180 John St, Unit 320, Toronto, ON M5T 1X5. Free consultation: 647-588-3234.