Colorado’s Expressed Consent Law: Refusal to Take a Chemical Test

If you are stopped for operating a vehicle while intoxicated, can you refuse chemical testing?

By , Attorney

Under Colorado's expressed consent law, any person who drives a motor vehicle on the streets and highways of the state is deemed to have given consent to a breath, blood, saliva, and/or urine test. In other words, a driver is required to comply with an officer's request to take a chemical test when there's probable cause to believe the person was driving a motor vehicle in violation of Colorado's DUI laws.

Under What Circumstances Will a Chemical Test be Requested?

An officer who has probable cause to believe a person was driving under the influence will normally ask the person to take a breath or blood test to determine the person's blood alcohol content (BAC). However, once a driver chooses either a breath or blood test, he or she typically can't change the election.

If an officer has probable cause to believe a person was driving under the influence of drugs or a combination of drugs and alcohol, the officer will request a test of blood, salvia, and/or urine.

Barring extraordinary circumstances, an officer is supposed to make sure the driver is tested within two hours of driving.

Consequences of Refusing a Test

Drivers who refuse chemical testing in violation of the expressed consent law are subject to certain penalties.

License Revocation

The Colorado Division of Motor Vehicles (DMV) will generally revoke an offender's driving privileges for refusing a chemical test. The following revocation periods apply:

  • First refusal. One-year revocation.
  • Second refusal. Two-year revocation.
  • Third refusal. Three-year revocation.

When a driver refuses to take a chemical test, the arresting officer can immediately take the driver's license and issue a temporary seven-day permit. A driver whose license has been revoked for refusing a chemical test is entitled to contest the revocation at an administrative hearing.

After completing two months of a refusal revocation, the offender will be eligible for a restricted license. But before the restricted license will be issued, the driver must install an ignition interlock device and complete alcohol/drug education and a treatment program.

Refusal Can Be Used Against a Defendant in a Criminal Case

Another consequence of refusing a chemical test is that the prosecutor is allowed to present evidence of the refusal in the criminal case if the defendant is on trial for DUI or DWAI (driving while ability impaired). This rule allows prosecutors to provide the jury with an explanation for why they don't have a chemical test showing the amount of alcohol or drugs in the driver's system. A prosecutor might also argue the driver refused testing in an effort to conceal intoxication.

Deciding Whether to Submit to Chemical Testing

A driver can refuse to submit to chemical testing, but the penalties for refusing are generally more severe than those for failing a test. In other words, the duration of a license revocation for test refusals is usually longer than the revocation for test failures.

There are also circumstances allowing police to administer a chemical test without the driver's consent. Generally, an officer can't physically restrain a person to obtain a sample for testing. However, if the incident involved injuries or death and the driver refused to complete a test, an officer can require a blood test without the person's consent.

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