What happens if I refuse the DUI breath or blood test in Colorado?

Colorado law requires you to submit to a blood or breath test if you get lawfully arrested for DUI. Refusing to take a chemical test can lead to an automatic one-year suspension of your driver’s license and being designated as a persistent drunk driver.

Here are three key things to know:

1. You can contest the license suspension at a DMV administrative hearing, and your criminal defense attorney can represent you.
2. Refusing the chemical test will jeopardize your license even if your DUI charges get dropped.
3. Refusing to take the chemical test triggers additional penalties, such as having to carry SR-22 insurance, using an ignition interlock device for one year, and completing a drug/alcohol program.

To help you better understand the consequences of refusing to take a drunk driving chemical test, our Colorado DUI defense lawyers discuss the following:

• 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?

1. What is Colorado’s “express consent” law?

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).

DUI tests in Colorado usually consist of either a DUI breath test, DUI blood test, or a saliva or urine test. These tests should occur within two hours of your driving.¹

Read more in our article, What is Colorado’s express consent law?

2. How is a “preliminary” roadside breath test different?

When a law enforcement officer pulls you over, they 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.

Note 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” (also called “implied consent”). Plus if you refuse to take or complete this post-arrest test—or you fail to cooperate—there are potentially serious consequences.

3. What are the penalties for refusing a DUI test in Colorado?

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. The prosecutor will present your refusal as the reason they do not have any BAC results to show the judge or jury. The prosecutors can also argue that your reason for refusing the test was to try to hide your intoxication.⁶

3.1. Length of the license suspension

Note that the length of your license revocation will increase if you have prior refusals:

Refusal to take a chemical test after a DUI arrest	License suspension period in Colorado
1st time	1 year
2nd time	2 years
3rd or subsequent time	3 years7

See our related article, How long is the license suspension for a chemical test refusal in Colorado?

3.2. Requesting an administrative hearing

If you refuse a chemical test following a Colorado DUI arrest, the officer will confiscate your license and replace it with a 7-day temporary driving permit. You (or your attorney) must request an administrative hearing with the DMV during that time.

If you do request a hearing within those seven days, you can continue driving pending the results of the hearing. Otherwise, the suspension will kick on on the seventh day.

3.3. Getting a restricted license

If your license is suspended due to refusing a DUI chemical test in Colorado, you can request a restricted license two months into the suspension period if you:

• complete the required drug/alcohol education and treatment program; and
• get an ignition interlock device installed into your car(s).

4. Should I take the Colorado DUI chemical test?

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. Then 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. For instance, the license revocation for a first-time refusal (1 year) is longer than the license revocation for a first-time DUI (9 months).

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.

4.1. Changes in Colorado’s DUI law

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. Though if you are under this limit, there’s no proof of that either.

Furthermore, if you refuse a chemical test, the officer can restrain you and take a forced blood draw anyway. So the state will likely get your BAC whether you consent or refuse.⁸

5. What are the defenses to Colorado DUI test refusals?

If you refused a chemical test, however, all is not necessarily lost. There are still ways to challenge your arrest at your DMV administrative hearing. 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.

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