When law enforcement officials have reasonable cause to suspect drivers of DUI, they can request that the accused take a breathalyzer test or submit to a blood test in order to assess the blood alcohol content (BAC) of the accused (a measured BAC of .08 will result in DUI charges, according to Colorado law).
In these circumstances, whether or not to choose a breath test versus a blood test — or whether to refuse testing altogether — may not be clear to the accused, and making the right choices in these delicate situations will be a critical part of their defense (or the prosecutor’s arguments). At Flesch & Beck Law we advise our clients regarding the best possible choices in these circumstances (as the best choice can vary from case to case), and also:
- Review the facts of the case to assess whether these tests were properly administered (and whether there was even reasonable cause to pull the accused over in the first place)
- Challenge the results of either test if questionable circumstance are involved
- Build the strongest possible defense cases for our clients in an effort to resolve these matters as beneficially as possible
Why am I being punished for refusing a Breathalyzer?
Imagine, if you will, a scenario in which you are driving home after having a couple drinks with dinner and are stopped by police. Even if you are not impaired, it is quite likely that the officer will arrest you and ask you to submit to chemical testing – such as a breathalyzer or blood test – in order to determine your blood-alcohol-content (BAC) level.
At first glance, you may be tempted to refuse BAC testing. After all, why should you be required to give the police evidence they will surely use against you, let alone face punishment if you refuse? Well, the answer to this question can be found in Colorado’s Expressed Consent law.
Understanding Expressed Consent in Colorado
Simply put, Colorado’s Expressed Consent law dictates that a driver is deemed under state law to have already expressed consent to BAC testing if he or she is driving anywhere in Colorado. Therefore, if police have probable cause to believe you are driving under the influence (DUI) or driving while your ability is impaired (DWAI), they can request that you submit to testing. If you refuse, you can face penalties from the DMV, including:
- One-year license revocation for the first refusal
- Up to five-year license revocation for the second refusal
- Up to five-year license revocation for the third, or subsequent, refusal
It is also important to note, even if you refuse a breathalyzer or blood test, you can still be charged with DUI and face criminal penalties if convicted, including possible jail time, fines, installation of an ignition interlock device and mandatory alcohol education classes, just to name few.
Regardless of whether the DMV has revoked your license for a refusal or a failed alcohol test, you can request a hearing to challenge your revocation. However, you only have seven days to request such a hearing – meaning you need to act fast and contact a lawyer right away.
Breathalyzer Versus Blood Tests, Consequences Of Refusing Testing
When choosing between a breath and blood test upon being pulled over for a DUI, in general, it is better for individuals to choose the breathalyzer, as these tests are typically less accurate than blood tests, and they often produce different results upon retesting. Additionally, roadside breath tests with hand-held breathalyzers are not admissible in court, as they are considered to be preliminary breath tests; only the results from table-top breathalyzer machines at police stations will be allowed for presentation in court. Should you refuse to take either the breath or blood test:
- The DMV will likely suspend your driver’s license for up to one year (or possibly longer if you have multiple DUIs).
- The prosecutor can use your refusal as an argument toward trying to prove guilt, implying that you had something to hide — like being under the influence of alcohol or drugs.
Regardless of the choices you make after being pulled over for a DUI, it’s vital that you retain our trusted Denver DUI attorneys in order to achieve the best possible outcome to your case. For a FREE, no-obligations evaluation of your case, contact us today by emailing us or calling (303) 806-8886.