Colorado law treats all motorists as having given express consent to take a blood or breath test in the event of a DUI arrest. If you get arrested and refuse the test, it can lead to
- an automatic one-year suspension of your driver’s license and
- being designated as a persistent drunk driver.
To help you better understand the consequences of refusing to take a drunk driving chemical test, our Colorado DUI defense lawyers discuss the following, below:
- 1. What is Colorado’s “express consent” law?
- 2. How is a “preliminary” roadside breath test different?
- 3. What are the penalties for refusing a DUI test in Colorado?
- 4. Should I take the Colorado DUI chemical test?
- 5. What are the defenses to Colorado DUI test refusals?
- 6. Call us for help
Also see our general article on Colorado DUI chemical tests: Breath, blood, refuse?
By driving in Colorado, you give your “express consent” to take a DUI chemical test if you are arrested on suspicion of:
- Colorado driving under the influence (DUI),
- Colorado DUI “per se” (BAC of .08% or higher),
- DUI of drugs (DUID),
- DUI of marijuana,
- driving while ability impaired (DWAI), or
- underage drinking and driving (UDD).1
When a law enforcement officer pulls you over, he or she may ask you to take a preliminary breath test to screen for your blood alcohol concentration (BAC). Legally you may decline to take this preliminary breath test – or any field sobriety test, for that matter– without penalty.
The one advantage to taking a preliminary DUI breath test is that if you blow “negative” (less than 0.05% BAC, or .02% if you are under 21), the officer will most likely let you go.
But the test is just used as one factor in determining whether there is probable cause to arrest you. If you are, in fact, arrested, you will be asked to take an evidentiary breath or blood test, usually at the station.
This is the chemical test to which you have given your “express consent.” And if you refuse to take or complete this post-arrest test—or you fail to cooperate—there are potentially serious consequences.
Consequences of a Colorado DUI chemical test refusal include:
- One year automatic suspension of your Colorado driver’s license (although you can apply for reinstatement of driving privileges after two months),
- Designation as a Colorado “persistent drunk driver” (PDD), even if it is your first DUI arrest,2
- A mandatory alcohol and drug education and treatment program3,
- An ignition interlock device on your vehicle for at least one year following the restoration of driving privileges,4 and
- The necessity of carrying SR-22 insurance even if you are not guilty of DUI.5
Additionally, should your DUI or DWAI case go to trial, your refusal to take a chemical test will be admissible as evidence of guilt.6
Unfortunately, there is no one-size-fits-all answer as to whether you should take a Colorado DUI chemical test or, if so, which one.
The main advantage of refusing a chemical test is that there will be no proof of your BAC if it is over the legal limit for a DUI “per se” (.08% if you are 21 or over).
On the other hand, you can still be charged with DUI or DWAI based on your actual driving and other external evidence of inebriation. And of course, there are the consequences that follow from the refusal itself, as set forth above. Many of these consequences are more serious than an actual DUI or DWAI conviction, especially if it is your first.
In addition, if you choose to take a chemical test, those test results are open to challenge, making a conviction potentially more difficult. The only significant way to challenge a chemical test refusal, on the other hand, is to challenge the arrest itself.
The decision of whether to refuse a chemical test has become more difficult since Colorado DUI laws changed in 2014. Before that, refusing a chemical test resulted in an automatic one-year suspension of your license with no possibility of earlier reinstatement. Now it is possible to apply for reinstatement after two months (as opposed to immediately following a DUI conviction).
Also in 2014, the legal limit for a persistent drunk driver designation dropped — from 0.17% to 0.15%. If you are convicted of DUI with a BAC of 15% or higher, you will be designated a persistent drunk driver anyway. No chemical test means no proof of driving above this limit. But if you are under this limit, there’s no proof of that either.
In the end, it’s your call.
If you refused a chemical test, however, all is not necessarily lost. There are still ways to challenge your arrest. The best DUI test refusal defense depends on the facts of your case. But common defenses often include:
- My arrest was unlawful because:
- I wasn’t driving;
- The officer didn’t have probable cause to pull me over; or
- There was no reason to believe I was driving drunk;
- The officer failed to advise me properly of my rights; or
- My refusal was beyond my control — for example, due to a medical condition such as epilepsy or a head injury. This last defense only works, however, if the test refusal is entirely unrelated to drug or alcohol use. If your incapacity resulted in any way from alcohol or drugs—even prescription or over-the-counter ones– your refusal will not be legally excused as long as you voluntarily ingested the drugs or alcohol.
If you refused a DUI chemical test in Colorado, don’t lose your license without a fight. Our Denver Colorado criminal defense attorneys offer free consultation.
Our home office is conveniently located at:
Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211
Learn more about Colorado DUI laws.
Arrested in Nevada? See our article on refusing chemical tests in Nevada DUI law.
- 42-4-1301.1, C.R.S. Expressed consent for the taking of blood, breath, urine, or saliva sample – testing. (1) Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person’s consent to the provisions of this section. (2) (a) (I) A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person’s breath or blood for the purpose of determining the alcoholic content of the person’s blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, or UDD. Except as otherwise provided in this section, if a person who is twenty-one years of age or older requests that the test be a blood test, then the test shall be of his or her blood; but, if the person requests that a specimen of his or her blood not be drawn, then a specimen of the person’s breath shall be obtained and tested. A person who is under twenty-one years of age shall be entitled to request a blood test unless the alleged violation is UDD, in which case a specimen of the person’s breath shall be obtained and tested, except as provided in subparagraph (II) of this paragraph (a). See also People v. Montoya (May 26, 2022) 2022 COA 55. See also People v. Montoya, (Court of Appeals, 2022) COA 55. SB21-055.
- 42-1-102 (68.5) (a), C.R.S. “Persistent drunk driver” means any person who… (IV) Refuses to take or complete, or to cooperate in the completing of, a test of his or her blood, breath, saliva, or urine as required by section 18-3-106 (4) or 18-3-205 (4), C.R.S., or section 42-4-1301.1 (2).
- 42-2-126 (B), C.R.S.
- 42-2-132.5, C.R.S.
- See Colorado Department of Revenue, Division of Motor Vehicles, SR-22 and Insurance Information.
- 42-4-1301 (6) (d), C.R.S.