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How Does Express Consent Work in Colorado?

On behalf of Dolan + Zimmerman LLP September 6, 2021

In some circumstances, you are expressly consenting to follow certain laws by simply engaging in an activity. For instance, when you get behind the wheel, you’ve expressly consented to agree to a breath or blood test if you are arrested for of driving under the influence. So, what does this mean, and what happens if you don’t want to submit to these tests if you find yourself in this situation?

Refusing Breath or Blood Test

If you refuse a breath or blood test after you’ve been arrested for driving under the influence, there can be severe consequences, including the following:

  • Up to one year suspension of your driver’s license;
  • Deemed a persistent drunk driver – even if it’s your first DUI offense; 
  • Required to install an ignition interlock in your car for at least one year once you’re permitted to start driving again. This means you have to blow into a device that confirms you haven’t been drinking every time you wish to start your car; and
  • Your refusal to submit to the breath or blood test will be admissible at trial should it get to that point. This is problematic because many judges and juries will assume that you refused to take the test because you were under the influence. They often think that if you were innocent, you would happily take the test to clear your name. 

Express Consent Does Not Apply to Field Sobriety Tests

In Colorado, express consent does not apply to field sobriety tests. If you are stopped for suspicion of DUI, you’re under no legal obligation to agree to perform the field sobriety tests if an officer makes that request. If your case goes to trial, this denial can be damaging to you, but you do have the right to refuse. 

You’re Not Required To Take A Preliminary Breath Test

It’s important to note that there’s a distinction between a preliminary breath test that an officer requests before you’re placed under arrest, and the breath test that you’re required to take after you’re under arrest. In Colorado, police officers often request a driver to take a preliminary breath test when they suspect the driver is intoxicated. If you’re 21 years or older, you can refuse this test without any negative consequences. If the police officer determines that they have enough evidence to arrest you and then they request a breath test, you must submit to that test. 

Defenses to a Refusal

While you’re required to submit to a chemical test or you will face significant consequences, there are several defenses your attorney can raise, including the following:

  • You were not the person driving and therefore were not required to submit to a chemical test;
  • The police officer had no probable cause to pull you over in the first place. In this situation, your lawyer would file a motion to suppress in order to request that any evidence recovered after the illegal stop is inadmissible; 
  • The police didn’t have any evidence or reason to believe that you were under the influence;
  • You were not advised of your rights; and
  • You have a medical condition that made it difficult or impossible for you to submit to the chemical test.

If you find yourself in this situation, it’s a good idea to contact an experienced Boulder criminal defense attorney as soon as possible.