Expressed Consent

Colorado law requires you to take a breath or blood test if you are arrested for a DUI, underage drunk driving (UDD), driving while impaired (DWAI), or are considered a "habitual user" of controlled substances. Colorado’s “expressed consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (BAC). If the officer believes you may be under the influence of drugs, then you also consent to a urine test.

The test must be taken within two hours of when you last drove and you can choose which test to take, unless there are "extraordinary circumstances" such as weather-related delays, high call volume affecting medical personnel, power outages, malfunctioning breath test equipment, and other circumstances that preclude timely collection and testing. Once you choose a test, you can’t change your mind. If you do, then that’s considered a refusal and you won’t get to take the other test, with one exception. If you wanted a breath test, but could not complete it because of injuries or illness, you can have a blood test instead.

Additionally, Colorado law says that you consent to taking a preliminary breath test, even if you have not been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test, and the officer should say so. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described in the paragraph above.

You can read Colorado’s implied consent law in Colorado Revised Statute 42-4-1301.1, and about the preliminary breath test in Colorado Revised Statute 42-4-1301.

Penalties for Refusing to Take the Test

In Colorado, the state will suspend your license for refusing to take a chemical test, whether a blood or breath test for alcohol or a blood, breath, or urine test for drugs. For your first refusal, you lose your license for one year. For your second refusal, you lose your license for two years. For your third and any subsequent refusal, you lose your license for three years.

If you think it would be a good idea to refuse the test by “taking the fifth” – meaning you will not cooperate with testing based on your Fifth Amendment right against self-incrimination – think again. You can’t use this as an excuse. If you refuse the test, you will face the consequences above and the state can use your refusal as evidence against you in court. This is explained in Colorado Revised Statute 42-4-1301.

In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, if the incident that caused you to be arrested also caused injury or death to yourself or another person, the law says that an officer can physically restrain you, if necessary, to take the test. Also, the state may administer the test if you are unconscious or dead, even if you haven’t yet been arrested. You can read this law in Colorado Revised Statute 42-4-1301.1.

Should You Refuse to Take a Mandatory DUI Test?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI. In Colorado, the consequences for refusal are milder than those for a DUI, which include jail time, fines, and public service. Refusing the test does not guarantee that you won’t be convicted – you can still be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

(Check out our blood alcohol content chart for an estimate of how many drinks it takes to get to the legal limit.)

Get Help With Your DUI

If you have been arrested on a DUI charge in Colorado or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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