How Serious is a Failure or Refusal to Provide Bodily Sample Charge?

A Refuse to Provide Bodily Sample Charge, More Accurately a Failure or Refusal to Comply With Demand Charge, Is a Serious Criminal Charge With A Range of Potential Penalties Including Life Imprisonment.

Understanding Failure or Refusal to Comply With Demand Per Section 320.15 of the Criminal Code

The charge that is commonly known and referred to as Fail to Provide Breath Sample is actually a misnomer.  Technically, in law, the charge is Failure to Comply With Demand which may involve a motor vehicle, a watercraft of many types, an aircraft, or railway equipment.  Additionally, the charge has three variations depending on whether the conduct caused danger, caused injury, or caused death.

The Law

In 2018, the Criminal Code, R.S.C. 1985, c. C-46 was significantly revised.  The former dangerous driving charge, which was previously found at section 254 of the Criminal Code was repealed and the new charge of failure or refusal to comply with demand was added, and reworded from the former charge.  The new charge is found at section 320.15 of the Criminal Code.  Specifically, the new charge states:

Failure or Refusal to Comply With Demand

320.15 (1) 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 320.28..

Accident resulting in bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in bodily harm to another person.

Accident resulting in death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in the death of another person or in bodily harm to another person whose death ensues.

Only one conviction

(4) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in the death of another person or in bodily harm to another person whose death ensues.

As shown, section 320.15(1) addresses failure to comply with demand for bodily sample upon suspicion of impairment, section 320.15(2) addresses accidents causing bodily harm or injury and section 320.15(3) addresses accidents causing death. For each level of seriousness, albeit each level is highly serious, the degree of potential penalties and punishments increases.

Possible Penalties

As above, the possible penalties, as potential punishments, upon conviction for the impaired operation offences vary depending on the circumstance and the specific charge.  For impaired operation causing risk of danger, the possible penalties are found at section 320.19(1).  For impaired operation causing injury, the possible penalties are found at section 320.20.  For impaired operation causing death, the possible penalties are found at section 320.21.  Specifically, the penalty sections state:

Punishment

320.19(1) Every person who commits an offence under subsection 320.14(1) or 320.15(1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days.

Punishment in case of bodily harm

320.2Every person who commits an offence under subsection 320.13(2), 320.14(2), 320.15(2) or 320.16(2) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to the minimum punishments set out in subparagraphs (a)(i) to (iii).

Punishment in case of death

320.21 Everyone who commits an offence under subsection 320.13(3), 320.14(3), 320.15(3) or 320.16(3) is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000;

(b) for a second offence, imprisonment for a term of 30 days; and

(c) for each subsequent offence, imprisonment for a term of 120 days.


Summary Comment

Upon suspicion that a driver's ability to operate a motor vehicle is impaired by drugs, alcohol or a combination thereof, a police officer may make a demand upon the driver for a bodily sample of thier breath, blood, urine or saliva, as may be applicable to the circumstanceFailure or refusal to comply with such demand will result in a criminal charge which often becomes more difficult to defend than an Impaired Operation of a Conveyance charge ("Impaired Driving") where the driver had provided a sample as required by Law. Depending on the circumstances of the offence, Failure or Refusal to Comply With Demand involves a range in severity of possible charges with each having a range in severity of potential penalties. For this reason, the importance of retaining a competent legal representative cannot be sufficiently stressed. In such cases, it is highly recommended that the accused person seek the advice of an experienced Refuse Breath Sample Lawyer. 

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