A breathalyzer test refusal is a serious DUI criminal charge, but understanding your legal options is crucial. We regularly see cases where specific legal defences can significantly impact the outcome of a breathalyzer refusal charge. Let's examine five powerful defences that could help fight this charge.


1. The Invalid Demand Defence


Many people are unaware that police officers must follow specific protocols when requesting a breath sample. The law requires what's called a "clear and unequivocal demand." This isn't just legal jargon – it's a crucial distinction that could affect your case.


For instance, there's a significant legal difference between an officer asking, "Would you like to take a breath test?" and stating, "I demand you provide a breath sample." This subtle distinction has led to dismissed cases when officers phrase their request as a question rather than a proper demand. The law requires absolute clarity, and any ambiguity could work in your favour.

2. Charter Violations Defence


Your Charter rights provide essential legal protections, and any violation of these rights could potentially lead to a successful defence. Here are key Charter considerations in breathalyzer refusal cases:

- Right to legal counsel at the police station (though this doesn't apply to roadside testing)


- Lawfulness of detention


- Reasonable grounds for breath sample demand


- Timing and potential unreasonable delays

Any breach of these rights could result in your case being thrown out.


3. The Reasonable Excuse Defence


Perhaps the most misunderstood defence is the concept of a "reasonable excuse." Contrary to popular belief, you don't need to prove your excuse beyond all doubt. The legal standard only requires raising what's called an "air of reality."


Several conditions might qualify as reasonable excuses:

- Medical conditions such as asthma or COPD


- Physical limitations like broken ribs


- Severe anxiety


- Age-related difficulties

Once you present a reasonable excuse, the burden shifts to the Crown to disprove it beyond a reasonable doubt.


4. Problems with the Device


Technical issues with breathalyzer devices can provide a strong defence. These sophisticated instruments require the following:

- Regular maintenance


- Proper calibration


- Correct setup procedures

Any technical failures in these areas could potentially invalidate the refusal charge. Device maintenance records and calibration data can be crucial evidence for this defence.


5. The Mouth Alcohol Defence


The timing of your last drink can significantly impact breathalyzer results. If you consumed alcohol within 15 minutes of the test, this could affect the validity of the demand. Police officers should observe a waiting period before demanding a breath sample, mainly if they know you've just left a bar. This waiting period isn't just a procedural formality – it's essential for accurate results.


Conclusion


Breathalyzer refusal cases are more complex than they might initially appear. While these five defences can be powerful tools in fighting a refusal charge, their effectiveness depends largely on proper legal expertise and application.


If you're facing a breathalyzer refusal charge, seeking professional legal counsel who can evaluate your situation and determine which defences might apply to your case is crucial.

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