If you get arrested for DUI in Colorado, you are generally given the choice between taking a blood or breath test. But if the police suspect you of being under the influence of drugs, they can require you to take a blood test specifically. This is because the breath test only measures alcohol levels, whereas the blood test detects both alcohol and drugs.
DUI blood tests are generally more reliable than DUI breath tests. Yet they are still prone to errors.
Our Colorado DUI defense lawyers have decades of experience challenging DUI blood tests. We understand Colorado’s strict DUI chemical testing procedures. We know how to learn when a blood sample has gone bad.
To help you understand how to fight Colorado DUI blood tests, our caring Denver DUI attorneys discuss the following, below:
- When must I take a Colorado DUI blood test?
- Can I refuse to take a blood test?
- Should I choose a blood test?
- Can my blood be taken against my will?
- Colorado DUI blood testing procedures
- DUI defenses based on blood testing
Also see our general article on Colorado DUI chemical tests: Breath, blood, refuse?
When must I take a Colorado DUI blood test?
When you drive in Colorado, you give your express consent to a chemical test if you are arrested on suspicion of:
- DUI — driving under the influence of alcohol and/or drugs,
- DUI “per se” (BAC of .08% or higher),
- DWAI — driving while ability impaired,
- Excess BAC CDL (driving a commercial vehicle with a BAC of .04% or higher), or
- UDD — underage drinking and driving.
You must be given the choice of a DUI blood test or a DUI breath test, unless:
- the officer has probable cause to believe drugs were involved (blood, urine or saliva may be tested),
- you are under 21 and the alleged violation is solely UDD (breath test required),
- you are unable to take a particular test due to a medical condition (or because you are unconscious or dead), or
- extraordinary circumstances prevent completion of your chosen test within two hours of your driving.
Can I refuse to take a blood test?
There are serious consequences if you refuse to take a Colorado DUI chemical test after a lawful arrest. Colorado penalties for DUI chemical test refusal include:
- Automatic suspension of your Colorado driver’s license,
- Designation as a Colorado “persistent drunk driver” (PDD),
- Mandatory alcohol and drug education and treatment,
- Mandatory installation of an ignition interlock device before you can drive again,
- SR-22 insurance even if you are not guilty, and
- Admissibility of your refusal as evidence of guilt should your case go to trial.
However, unless you have been involved in a serious accident or the officer reasonably suspects you of drug use, you must be given the option to take a breath test instead.
Should I choose a blood test?
There are pros and cons to both DUI blood testing and DUI breath testing (or refusing to take a chemical test at all). The main advantages of a blood test are:
- DUI blood tests are less prone to errors than DUI breath tests, and
- part of a DUI blood sample must be saved and made available to you for independent testing.
Can my blood be taken against my will?
Under ordinary circumstances, a forced blood draw without a warrant violates your Fourth Amendment constitutional rights.However, you can be forced to submit to an involuntary DUI blood test in Colorado if:
- you are unconscious (or dead), or
- the arresting officer has probable cause to believe that you have committed:
- criminally negligent homicide,
- vehicular homicide,
- third-degree assault, or
- vehicular assault.
In such a case, you may be physically restrained for a blood test. The results of the involuntary blood test are then admissible in a prosecution for any of the above crimes or for DUI, DUI per se, DWAI, or UDD.
Colorado DUI blood testing procedures
The Colorado State Board of Health sets forth specific rules and procedures for testing blood for alcohol and/or drugs. These rules are set forth in the Code of Colorado Regulations (“CCR”) — 5 CCR 1005-2.
Requirements for blood testing include:
- The test must be given within two hours of a traffic stop.
- Blood must be tested by a laboratory certified by the state.
- Blood must be taken by a trained medical professional.
- The collection must take place in the presence of the arresting officer or another supervisor.
- The equipment must be sterile.
- Only approved, properly mixed preservatives may be used.
- Blood must be stored at the proper temperature.
- Specimens must be shipped for testing within 7 days of collection.
- “Positive” samples must be retested using a different chemical principle from the initial screening test.
- A portion of the sample must be preserved for 12 months for possible retesting by the defendant.
DUI defenses based on blood testing
There are numerous ways in which a skilled Colorado DUI defense lawyer can challenge your DUI blood test results. Some of the most common include:
- There was no reasonable basis for your traffic stop.
- The officer didn’t offer you a choice of test.
- There was no probable cause to suspect you of doing drugs.
- Your arrest wasn’t lawful.
- Your blood was not drawn within two hours of your traffic stop.
- There was sufficient evidence of your sobriety to cast doubt on the accuracy of the test results.
- Your blood was not drawn by a qualified medical professional.
- The blood was not stored at the proper temperature.
- The sample was not sent out for testing on time.
- The laboratory was not properly certified.
- The blood was not properly retested.
- There were errors in labeling and/or record keeping.
- You were unable to test a sample of your blood independently.
- Your blood alcohol was “on the rise” at the time of your blood test — that is, your system had not yet fully absorbed the alcohol when you drove, but had gone over the limit by the time you were tested.
For more information on this last defense, please see our article, Colorado DUI defense: “rising blood alcohol.”
Call us for help…
Were you charged with drunk driving or DUI of drugs in Colorado? Our Denver DUI attorneys have years of experience fighting DUI charges. Contact us for a free consultation to find out how we can help you keep your good name and your Colorado driving privilege. (For cases in Nevada, contact our Las Vegas DUI attorneys).
Our convenient Denver DUI lawyers are located at:
Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211
- 42-4-1301.1 C.R.S.
- 42-4-1301.1 (2), C.R.S
- Missouri v. McNeely, 569 U.S. 141 (2013).
- 42-4-1301(6)(e), C.R.S.
- See in particular Part 6: Blood Forensic Toxicology – Collection and Testing Requirements.