What is Colorado’s express consent law?

Posted on March 20, 2019

People who drive in Colorado automatically give their “express consent” under 42-4-1301.1 C.R.S. to submit to a breath or blood test if they are arrested on suspicion of either:

• the Colorado crime of driving under the influence (DUI) of drugs or alcohol,
• the Colorado crime of DUI “per se” (BAC of .08% or higher),
• the Colorado crime of driving while ability impaired (DWAI), or
• the Colorado crime of underage drinking and driving (UDD).

Chemical test refusals in Colorado

There are many consequences of refusing to take a breath or blood test (“chemical test”) following a Colorado DUI arrest. Six of these include:

1. One (1) year suspension of the defendant’s Colorado driver’s license (although the defendant may apply for reinstatement of driving privileges once two (2) months have passed),
2. Legal designation as a “persistent drunk driver” (PDD), even if it is the defendant’s first DUI arrest,
3. Completion of an alcohol and drug education and treatment program,
4. An ignition interlock device in the defendant’s car for no less than one (1) year following restoration of driving privileges,
5. Carrying SR-22 insurance irrespective of whether the defendant gets convicted of DUI, and
6. Should the case reach trial, the refusal to take the chemical test will be admissible as evidence of the defendant’s guilt

Defenses to chemical test refusals in Colorado

When a DUI defendant refuses to take a chemical test, there may still be ways to challenge the legality of his/her arrest. Five common defenses include:

1. The defendant was not the person driving;
2. The police officer had no probable cause to pull over the defendant;
3. The police had no reason to believe the defendant was under the influence;
4. The police officer did not properly advise the defendant of his/her rights; or
5. The defendant’s refusal was beyond his/her control (for example, a medical condition that had nothing to do with any drugs or alcohol he/she voluntarily ingested)

Preliminary breath tests in Colorado

A preliminary breath test (PBT or “roadside breath test”) in Colorado is totally different from the evidentiary breath test that defendants may take following an arrest. Once an officer pulls over a driver on suspicion of DUI, the officer may ask him/her to take a preliminary breath test on a handheld device. The preliminary breath test is merely a way for an officer to determine whether the driver might be under the influence.

Drivers twenty-one-years-old (21) and older may lawfully refuse to take a preliminary breath test. There are no negative consequences to refusing as there are with refusing to take an evidentiary breath test (discussed above).

However, drivers under twenty-one-years-old (21) are required to a preliminary breath test if the police officer reasonably suspects he/she has ingested alcohol. This is because it is illegal for people under twenty-one (21) to drink alcohol.

Breath versus blood tests in Colorado

Drivers arrested for DUI can usually elect whether to take a breath or blood test. However, blood tests are required when the police suspect the defendant is under the influence of drugs or if the defendant is dead. Meanwhile, breath tests are required for defendants under age twenty-one (21) and whose sole alleged violation is underage drinking and driving.

The main advantage of a breath test is that it is less invasive than a blood test. Meanwhile, blood tests are more accurate than breath tests, and the defendant can submit the blood sample for independent testing.

Learn more about our Denver DUI defense lawyers.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.