Home » Your Rights During a Breathalyzer Test

Being pulled over by the police can be stressful and frightening—even if you are sure you have not broken any laws. But if you are driving after having a drink or two (or more), and the police stop your vehicle and want to administer a field sobriety test on you—including a Breathalyzer—what are your rights? Does the law allow you to refuse the Breathalyzer? Is that even in your best interest? What other tests are the police legally permitted to administer? And are you required to submit any samples they request?

Knowing exactly what the police are allowed to request from you during a traffic stop where they suspect that you may be driving under the influence (DUI) or driving while impaired (DWI)—and understanding your rights under the law, particularly related to Breathalyzer tests—is crucial for your own protection. It can mean the difference between possibly incriminating yourself, facing legal repercussions, or continuing.

An experienced Edmonton criminal defence lawyer like those at Chadi & Company who understands not only the nuances of DUI law itself but also how these cases are typically prosecuted and the best way to advocate on your behalf can help mitigate the consequences of a failed Breathalyzer.

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What is a Breathalyzer test?

A Breathalyzer is a roadside breath test device that indicates the presence of alcohol in a person’s system and tests their blood alcohol content, or BAC, to determine if it is above the legal limit. The term Breathalyzer comes from the brand name of test instruments invented in the 1950s and is now often used as a general term to refer to any roadside breath test or alcohol meter device used to measure a person’s BAC.

Law enforcement uses Breathalyzers during routine traffic stops, at accident scenes when they suspect a driver may be impaired, and at DUI checkpoints to determine if a driver has alcohol in their system and may be operating a vehicle while under the influence of alcohol.

Can you legally refuse a Breathalyzer test?

Canadian and provincial laws regarding driving under the influence or driving while impaired are complex and may carry severe penalties. The charges—and consequences—may be even more severe depending on how far above the legal limit your blood alcohol content is, if there are minors in your vehicle, or if there are any injuries involved.

Under Canadian law, a driver who has a blood alcohol content of .08 or more—80 milligrams of alcohol per 100 millilitres of blood—is in violation of federal law. Refusing to provide a breath sample by submitting to a breathalyzer test can lead to charges under the Criminal Code of Canada. Law enforcement may also issue Immediate Roadside Sanctions (IRS), including fines, suspension of the driver’s licence, and vehicle seizure.

What types of tests and samples can police request during a DUI stop?

Alberta’s Checkstop Program allows law enforcement to “demand a breath sample from any driver whom they have lawfully stopped, even if the police do not suspect alcohol impairment.” Police may also require a driver to take a roadside oral fluid test. An oral fluid test is used to identify the presence of certain substances in a person’s saliva, including THC, cocaine, and methamphetamine. As with a Breathalyzer test, a driver cannot legally refuse to take an oral fluid test. Refusal can result in criminal charges, provincial sanctions and licence suspension.

A driver who passes both the roadside breath test and the oral fluid test is typically free to return to the road. However, suppose a driver’s breath test indicates the presence of alcohol in their system or whose oral fluid test indicates the presence of drugs. In that case, law enforcement will proceed with an impaired driving investigation. In Alberta, this investigation may result in Criminal Impaired Driving Charges or Immediate Roadside Sanctions without criminal charges.

If you or a loved one are facing DUI or DWI charges, it is imperative that you speak with an experienced Edmonton DUI lawyer. A failed Breathalyzer test can have potentially serious consequences – especially if it is not your first offence.

In addition to costly fines and possible jail time, the court may suspend your driving privileges if you are convicted of DUI. Even a temporary suspension of your driver’s licence can cause substantial hardship. For instance, if you drive for a living, a DUI that results in a licence suspension could cost you your job. Even if you do not drive for a living, losing your driver’s licence may make it more difficult for you to get to and from work, take care of basic needs like grocery shopping or getting to school or doctor’s appointments, and care for yourself and your family. Ultimately, a DUI conviction can upend your life in a variety of ways and have long-lasting repercussions.

The best way to avoid or mitigate the legal consequences of a failed Breathalyzer test and DUI charge is with the skilled defence of a DUI lawyer like those at Chadi & Company. Our criminal defence lawyers have fought for clients throughout Alberta and Western Canada for three decades. Let us fight for you.

Contact a skilled Edmonton DUI lawyer today

At Chadi & Company, we have a deep knowledge and understanding of DUI law and extensive experience defending clients against DUI charges, including when the client has failed a field sobriety test such as a Breathalyzer. We understand that everyone makes mistakes, and one error in judgment should not define your life, so we listen to each client’s story without judgment and then develop a defence strategy designed to obtain the best possible outcome for our client. We stand ready to fight for you. Call us today at 780-429-2300 or complete our contact form to schedule a free consultation.

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