If I've Been Drinking, Should I Refuse to Take a Breath Test?

Breathalyzer Test

If you are stopped for suspicion of driving under the influence in Colorado, you have three options: take a breath test, take a blood test or refuse to take a test at all. If you know that you've been drinking – even if it was not enough to put you over the legal limit – you may think that the best option is to refuse.

Although you are the only one who can make this decision, it is important to know that there will be consequences if you do. Under Colorado's "expressed consent" law, you cannot refuse to take a chemical test after being arrested for DUI unless you are willing to accept the penalties that come along with it.

Understanding Colorado's Expressed Consent Law

In Colorado, driving is seen as a privilege and not a right. This means that you must consent to chemical testing if a law enforcement officer suspects that you have been driving under the influence. Although an officer cannot physically compel you to provide a breath or blood sample, the expressed consent law states that your driver's license will be confiscated if you refuse. For this reason, it may not be in your best interest to refuse – even if you had been drinking prior to your interaction with the police.

If you agree to take a chemical test, the test of your choosing (breath or blood) must be administered within two hours of when you drove last. Once you choose a test, you cannot change your mind. If you do, the police may consider this a refusal. Furthermore, it is important to note that you do not have to take a preliminary breath test. The officer must inform you of this right. Taking a preliminary test would provide the officer with a chance to establish probable cause, so it is your right to refuse this test.

What would happen if I refused to take a test?

According to Colorado Revised Statute § 42-4-1301, the state has the right to suspend your driver's license if you refuse to take a chemical test. It would not matter whether or not you were intoxicated; this penalty will be imposed either way. In fact, it only has to be established that you willingly refused. The length of the suspension will depend on the number of times that you have refused in the past.

  • First refusal: your license will be suspended for one year
  • Second refusal: your license will be suspended for two years
  • Third refusal: your license will be suspended for three years

You should also know that refusing to take a breath or blood test will not necessarily stop law enforcement from arresting you. If they have other reasons to suspect that you were driving while drunk, they can still make an arrest for DUI. At your trial, the prosecuting attorney may even attempt to show the jury that your unwillingness to cooperate with law enforcement is a sign of your guilt.

Get an Experienced Former Prosecutor on Your Side

Whether you refused to take a chemical test or took one and failed, you should waste no time in contacting my firm if you have been arrested for DUI in Colorado Springs. With experience as a former prosecutor, I have the legal know-how to defend you against even the toughest of criminal charges. Set up a free initial consultation with my firm, Geoff Heim, Attorney, LLC, today to find out how I can put 15+ years of experience to work for you. Time is of the essence when your future is on the line!