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Copperlaw
Copperlaw, Lawyer
Category: Canada Law
Satisfied Customers: 2012
Experience:  Lawyer and Retired cop. Drug expert, breath tech, negotiator, traffic specialist. Criminal, Family, Civil and others.
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Is it better to refuse to blow than submit a smaple if you

Customer Question

is it better to refuse to blow than submit a smaple if you know you will fail for a road side screening for a irp?
Submitted: 1 year ago.
Category: Canada Law
Expert:  Copperlaw replied 1 year ago.

Absolutely not. The penalty for a refusal is the same as if you blew over. The difference is the evidence that is required to prove the charges.

With a refusal, it need only be proven that he officer had the grounds to make the demand and that you refused to comply with the lawful demand as the Criminal Code requires. This is relatively easy to prove and therefore, most often results in a conviction.

However, if you blow and you blow over, this is not the end of it, as so many things have to be in order for the charge to actually be proven in court. Impaired driving and Over 80 charges are so technical nowadays, that they frequently result in findings of Not Guilty where things have been done incorrectly.

The issue is that these offences are highly technical and require extensive documentation, testing, and other factors and as such, if even the slightest thing is missed, the charge could then fail in court and the accused is off the hook. There aren't really any technical issues with a refusal.

Please let me know if you require anything further at all as I am happy to chat further.

Also, please take a moment to leave me a positive rating.

Jim

Expert:  Copperlaw replied 1 year ago.

Hi, I see that you were back in and viewed my response however I do not see a reply from you.

Please let me know if you are satisfied with the information that you have received or if you require further information.

Jim

Customer: replied 1 year ago.
my problem is that i don't remember the incident in question at all. all i remember is being in a bar around approximately midnight and then waking up in police custody at around 8 to 10 am. during those missing hours i was pulled over and charged with an irp and apparently refused to blow. i have zero memory of any of these events. i did go to the hospital have have my urine screened for drugs but test came back negative. the doctor that conducted the test did state that the have no way to test for ghb and that most drugs clear rapidly from the system so detection is frequently not possible. sadly, this is not my first irp so with out concrete evidence i was drugged which resulted in my lapse of judgement i'm worried they will just chalk this up to being 'in character' for me. i plan to ask the bar if there is any way to review their security footage in the hopes i can piece together what happened but i imagine that will be unlikely without a official order and i do not have anywhere near the funds to start a loosing battle.
Expert:  Copperlaw replied 1 year ago.

You have the right to take this to trial and in order to be convicted of the offence of refusing to provide a breath sample, it must be proven that you had the "mens rea" or guilty mind when refusing. If you were somehow drugged or not in your right mind at the time, through no fault of your own, then this would be a defense to the charge.

If you were at the bar and suspect that something happened there, you can actually make the request for the video to the Crown and they will have the police obtain the surveillance video, particularly if you advise that this is relevant to your state of mind at the time.

If you have witnesses who were with you and can testify to your limited consumption and/or your state of mind or you being in a condition that was not typical, then this would also help.

I look forward to hearing back from you.

Also, please remember to leave me a positive rating if you would be so kind.

Jim

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