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Can I Refuse a Breath or Blood Test in Colorado?

On behalf of Dolan + Zimmerman LLP May 31, 2018

Question: If a police officer pulls me over and suspects that I am driving while impaired or intoxicated by alcohol, marijuana, or another drug, can I just refuse to take a breath or blood test? What happens if I refuse?

Answer: You can refuse to take a chemical test.

Pursuant to Colorado’s Express Consent Law, drivers in the state of Colorado have already consented to submit to a chemical test if require to do so by a police officer with probable cause to believe that they are driving while impaired or intoxicated.

This does not mean that you can be forced to submit to a chemical test, except in certain circumstances involving accidents causing serious injuries or death.

It does mean that refusal to participate in a chemical test carries serious driver’s license penalties, including a lengthy period of time with an ignition interlock device and a longer period of no driving than if you choose to participate in a test.

There is a difference between portable breath tests (PBTs) and the blood or breath tests contemplated by Colorado’s Express Consent law.

Portable Breath Tests

When a police officer stops a driver and suspects that the driver is impaired or intoxicated, the officer may ask the person to participate in voluntary roadside maneuvers. We have all seen this on TV: the officer may ask the person to walk in a straight line, say the alphabet backwards, and similar exercises. These roadside maneuvers designed to develop probable cause so that the officer can require the person to do a chemical test. The officer may say that they are to determine whether or not a person is okay to drive, but that is not their actual purpose.

As part of these voluntary roadside maneuvers, the officer may ask the person to breathe into a small handheld device (a portable breath test, or “PBT”) that roughly measures a person’s blood alcohol content. PBT test results are not accurate enough to be used in court. They are for the purpose of establishing probable cause.

You can refuse to participate in voluntary roadside maneuvers, including a PBT test, without triggering automatic consequences for your driving privilege.

Chemical Tests Pursuant to Colorado’s Express Consent Law

Once the officer believes that probable cause exists sufficient for them to require you to participate in a chemical test pursuant to Colorado’s Express Consent Law. If an officer believes that you are impaired or intoxicated by alcohol, they must allow you to choose between a breath test and a blood test. If they believe that you are impaired or intoxicated by a drug, or by a drug in combination with alcohol, they will require you to do a blood test.

Again, you will not actually be forced to do a blood or breath test unless you were involved in an accident that caused serious injuries or death. You can refuse to do a chemical test in most situations. A refusal will cause the officer to take your license away immediately; you will still be entitled to a hearing regarding your refusal, and you will be able to drive with a temporary license until the hearing occurs.

Taking the test does not mean you necessarily will face conviction

Many drivers fear that taking the test is the same as admitting guilt or providing incriminating information. This is not necessarily true; it depends entirely on whether you are intoxicated or impaired at the time of driving.

The results of a chemical test can be either exculpatory or inculpatory, depending on the circumstances. If you are impaired or intoxicated, refusing a chemical test can protect you by depriving the prosecution of information that they will use against you.

It is also essential to remember that an arrest and a charge are not the same as a conviction. Regardless of your level of impairment or intoxication, there may be legal and factual defenses available in your case. For example, an attorney can challenge the reliability of the blood or breath test, or there could be question to whether or not the officer had probable cause to pull you over. Issues such as these can provide defenses in both the context of court and in the context of the administrative Department of Revenue matter related to your test or your decision to refuse a test.

These are just some of the many reasons why drivers are encouraged to seek a Boulder criminal defense lawyer after a DUI or DWAI arrest, to make sure their rights are fully protected and to understand the options that may be available.