What You Need to Know About Refusing to Take a Blood or Breath Test if You Are Arrested for a DUI


Colorado’s express consent law requires a motorist to take a breath or blood test if he or she is arrested for a DUI, underage drunk driving (UDD), driving while ability impaired (DWAI), or is considered a “habitual user” of controlled dangerous substances.  The law states that if you are lawfully arrested by a police officer who has probable cause to believe that you have been drinking and driving, then by the act of driving, 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, you also consent to a blood or urine test, the choice of which is determine by the arresting officer.

If the arresting officer suspects that you have been driving under the influence of alcohol and advises you of Colorado’s express consent law, you are then required to choose between a blood test, a breath test or a refusal to take any chemical test.  If you choose to take a blood or breath test, that test must be taken within two hours of the time of driving 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 may 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, unless you wanted a breath test, but could not complete it because of injuries or illness, then you can have a blood test instead.

You can always refuse to submit to a chemical test of your blood or breath as a result of a DUI traffic stop, even though some people may not realize they have the option of refusal.  Some people may be too anxious, nervous, or panicked to exercise the option to refuse a test, even though they know or remember they have that option.  No matter what, a person who refuses to submit to a chemical test should be aware of heightened penalties associated with making this decision.  A refusal to take a blood or breath test should not to be made lightly without consideration of impacts and ramifications to one’s license.

In Colorado, the Department of Motor Vehicles (DMV) will suspend your license for refusing to take a chemical test, whether it be a blood or breath test for alcohol or a blood, saliva or urine test for drugs.  For your first refusal, you will lose your license out right for one year without any possibility to receive a probationary driver’s license.  For your second refusal, you will lose your license for two years.  You will be eligible to apply for a restricted license with the ignition interlock after 1 year.  For your third and subsequent refusal, you lose your license for three years.  You will also be eligible to apply for a restricted license with the ignition interlock after 1 year.  The penalties for refusing to submit to a chemical test are found in Colorado Revised Statute 42-2-126.  After January of 2014, the law will change regarding the revocation period for refusals. A motorist may be eligible for early reinstatement with the ignition interlock before the 1 year revocation period.

If you are arrested for DUI and refuse to take a blood or breath test after being directed to do so by the arresting officer, that officer will confiscate your driver’s license and issue you an Express Consent Affidavit and Notice of Revocation.  This piece of paper outlines the allegations, probable cause and reasons why the arresting officer believes that your license should be revoked.  If your license is valid (regardless of whether the license is a Colorado license or an out of state license) the arresting officer will check the box at the bottom of the Express Consent Affidavit and Notice of Revocation issuing you a temporary driving permit.  This permit is only valid for seven (7) days.  You then have seven (7) days to contact the Colorado DMV in person or in writing and request a hearing on the notice of revocation.  You always have the right to request the presence of the arresting officer at the revocation hearing and you also have the right to be represented by an attorney at the DMV revocation hearing.  If you make a timely request for a hearing, the DMV may issue you another temporary driving permit at that time.  The temporary driving permit is valid up to the time of the first scheduled hearing or sixty days, whichever is the lesser of the two.  If a hearing is not timely requested, then the suspension takes place on the eighth (8th) day.

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