Short Answer: Yes, it does matter. But why?
Colorado law gives police officers permission to ask a person they suspect of driving under the influence to cooperate in the taking and completing of a blood or breath test to determine the driver’s BAC. More importantly, once a police officer makes the request, as a driver you are REQUIRED to submit to such testing. If you do not agree to at test, then DMV and the courts may use that refusal against you. At DMV, a refusal results in a longer license revocation and potentially a longer interlock requirement. In court, the prosecution and a jury may use the refusal as evidence of intoxication.
A refusal may be implicit or explicit. Poe v Department of Revenue, 859 P.2d 906, 908 (Colo. App. 1993). As an example, you may simply tell the officer you do not wish to submit to a test, which would be an explicit refusal. An example of an implicit refusal would be if the officer asks you to submit to a test and you refuse to respond. Id.
Another important issue to note is if you initially agree to breath testing on the side of the road but then do not comply with additional testing, then that is also considered a refusal of testing. Davis v. Carroll, 782 P.2d 884 (Colo App. 1989). See also Dolan v. Rust, 195 Colo. 173, 576 P.2d 561 (1978).
What if I initially refused a test, but later changed my mind?
Colorado law allows a person to recant a refusal under certain circumstances, meaning you may be able to change your mind and agree to a test even if you initially refused. However, the recantation must be clear AND the officer must have sufficient time to complete the selected test within two hours of driving. Gallion v. Colorado Department of Revenue, 155 P.3d 539 (Colo App. 2006).
Ultimately, if the case does indeed make it to trial, a jury will decide whether a driver refused testing based on the objective standards of the driver’s words and other behaviors that demonstrate either a willingness or an unwillingness to take the tests. Poe v. Department of Revenue, 859 P.2d 906, 908 (Colo. App. 1993); Dolan v. Rust, 195 Colo. 173, 576 P.2d 560 (1978).