DUI Breath and Blood Testing and Refusals

Breath Tests, Blood Tests, and Refusals

​In Colorado, when you are stopped for suspicion of a DUI or DWAI, you are given two options under the Colorado Express Consent laws. You have the option of giving a sample of breath or blood and if you elect not to take either test, then you are deemed to have refused.

If you choose breath, then the officers will have you submit two samples of breath with a designated amount of time between the two. The test must be completed within a two-hours of driving and the test must have been reliably conducted. See People v. Emery, 812 P.2d 665 (Colo. App. 1990) See also, Edwards v. Colorado Department of Revenue, 2016 COA 137, 406 P.3d 347, (2016). If the test was completed timely and conducted reliably, generally the results of the breath test will come in at trial.  A breath test over the legal limit, 0.08, will result in revocation of your driver’s license.  Following a breath test over the legal limit, the officer will immediately give you a notice of revocation, advising you that you have 7 days to request a hearing with DMV, otherwise, your license will be revoked for a period of time.

If you choose to have a blood test then the above requirements of the time period and reliability are still true. However, if you choose a blood test, then you must also sign consent and release forms. If you elect a blood test but then you do not sign the appropriate forms, then it will be deemed a refusal. C.R.S. § 42-4-1301.1(3).  Unlike a breath test, blood test results are not immediately available, so following a blood draw, you will keep your license until the blood test results come back. If the results are over the legal limit, 0.08, then DMV will notify you of the revocation by mailing a letter.  The letter will advise you that you must request a hearing, otherwise, your license will be revoked for a period of time.

Refusing to take either test will be noted as a refusal and the refusal will generally come in at trial, too. In Colorado, a refusal to take either test will also result in the suspension of your driving privilege. However, if you refuse both tests but then change your mind, as long as you communicate your change of mind to the arresting officer clearly and you are still within the two-hour time frame from the time the driving was observed to the time the test was completed, you are allowed to then take a test. Gallion v. Department of Revenue, 155 P.3d 539 (Colo. App. 2006), cert granted (Colo. March 19, 2007).