What is Colorado’s Express Consent Law?

Posted on April 15, 2022

The Colorado express consent law requires you to take a breath test or blood test following your arrest for any of these four offenses:

1. DUI – driving under the influence of alcohol or drugs;
2. DUI per se – driving with a blood alcohol content (BAC) of 0.08% or higher;
3. DWAI – driving while ability impaired; or
4. UDD-underage drinking and driving.

In short, Colorado DUI law presumes you give your express consent to submit to a chemical breath- or blood test after getting arrested for drunk driving or drugged driving.¹

Can I choose between the breath or blood test?

Under Colorado’s express consent law, you can choose between taking a breath test or blood test if you are arrested on suspicion of drunk driving. But if the law enforcement officers believe you took drugs, then you must take the blood test. This is because breath tests cannot detect controlled substances.²

The main advantage of breath alcohol tests is that they are less invasive than blood tests. But blood tests have more pros:

• Blood tests are more accurate than breath tests;
• Your defense attorney can submit the blood samples for independent testing; and
• You get to keep your license until the test results come back (unless you refused to voluntarily submit to the test).

What happens after I take the breath or blood test?

If you take the breath test, the officer will confiscate your Colorado driver’s license and give you an express consent affidavit and notice of revocation. If you take the blood test, then you get to keep your license for now. But in a few weeks after the results come back, the DMV will mail you the express consent affidavit and notice of revocation.

The express consent affidavit and notice of revocation serves as a seven-day driving permit, after which your driving privileges are suspended. But if within those seven days you request a DMV hearing (“express consent hearing”) to contest your license suspension, you can continue driving pending the DMV hearing officer’s decision – which may be weeks away.

The typical driver’s license revocation lasts for nine months for a first DUI, one year for a second DUI, and two years for a third DUI. But you may be able to resume driving immediately with an ignition interlock device in your motor vehicles. (A DWAI-first does not carry a license suspension.)³

What if I refuse to take a chemical breath- or blood test?

There are six consequences of refusing to take a breath or blood test following a Colorado DUI arrest:

1. The police will apply for a warrant to take a forced blood draw from you;
2. The police will confiscate your license right away and give you an express consent affidavit and notice of revocation (even if your DUI charge gets dropped);
3. You must carry SR-22 insurance for one year (or three years if you have a prior refusal or DUI conviction);
4. You must complete an alcohol and drug education and treatment program;
5. You will be designated a persistent drunk driver (PDD), even if it is your first DUI arrest; and
6. Should your DUI criminal case reach trial, your refusal to take the chemical test will be admissible as evidence of your guilt.

A first-time refusal typically carries a one-year revocation of your driver’s license. A second-time refusal carries a two-year revocation. And a third refusal carries a three-year revocation. But the DMV may grant you a reinstatement of driving privileges after two months if you have an ignition interlock device in your car.⁴

How do I fight charges that I refused the breath or blood test?

When you refuse to take a chemical test in violation of Colorado express consent law, there may still be ways a DUI attorney can challenge the legality of your arrest. Five common DUI defenses include:

1. You were not the person driving;
2. The police officer had no reasonable suspicion to pull you over;
3. The police had no reason to believe you were under the influence;
4. The police officer did not properly advise you of your rights; and/or
5. There were extraordinary circumstances beyond your control (for example, you were suffering from a diabetic coma or seizure that precluded your ability to consent to a test).

What is the preliminary breath test?

If you get pulled over on suspicion of DUI, the officer may ask you to take a preliminary breath test (PBT) on a handheld breathalyzer. This “roadside breath test” is totally different from the evidentiary breath test you may take later following a DUI arrest.

This PBT is merely a way for an officer to determine whether there is probable cause to arrest you for DUI. The officer will also likely ask you to perform field sobriety tests as well (such as the walk-and-turn and one-legged-stand).

If an officer requests you take the PBT – and you are 21 or older –  you can lawfully decline: Under Colorado express consent law, there are no negative consequences for refusing this type of test. This is because the PBT is not an evidentiary breath test. But since underage drinking is a crime, drivers under 21 are required to take a PBT as long as the police reasonably suspect the underage drivers of consuming alcohol.⁵

Arrested for driving under the influence of drugs or alcohol in Colorado? Contact our criminal defense law firm for legal advice. Our DUI lawyers fight to get your charges reduced or dismissed. We also appear at your DMV hearing at the Department of Revenue/Division of Motor Vehicles to fight for your license. See our related articles on vehicular assault, vehicular homicide, and level I and level II DUI school.

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