On September 12, 2012, Sally Struthers was charged with a DUI in York County, Maine. Struthers, through her DUI attorney, has pled not guilty and requested a jury trial. Her attorney has also filed a motion arguing that, while Struthers refused to take a chemical test to determine her blood alcohol level, her refusal was induced by improper information provided by the police officer. The motion also argues that the officer did not have probable cause to ask Struthers to take a chemical test.
Colorado appears to have similar laws to Maine when it comes to taking a chemical test as part of a DUI investigation. Colorado has a law called the Express Consent Law that requires all drivers to submit to a blood or breath test when a police officer has probable cause to believe he/she has committed a DUI. In Colorado, if the driver refuses to take a blood or breath test, the driver loses his/her license for one year under current law. A new law will take effect January 1, 2014, but for the time being, the consequence for refusing a chemical test is a one year license revocation. Struthers attorney’s argument that Struther’s refusal was induced by the officer is an argument that may be used to show that the refusal should not be used against Struthers in trial.
In Colorado, if a person refuses a chemical test, this refusal can be used against the driver in a DUI trial as evidence of guilt. A person refuses the chemical test when he/she exhibits an outward manifestation of unwillingness to cooperate with the completion of the test. What does this mean? This means that a person may refuse the test by explicitly telling the officer, “No.” It also means that a person who is uncooperative may also be deemed to have refused the test. For example, if a person agrees to take a breath test, but then refuses to provide a sufficient breath sample for the breath machine to provide a reading, then this behavior, even if the person never says, “No,” may be considered a refusal in Colorado. On the other hand, perhaps this same person agrees to take a breath test, but suffers from asthma so he/she cannot provide a sufficient sample regardless of how hard he/she tries, this is likely not a refusal. Whether a court finds a person refused testing is important for two reasons: 1. At a DMV hearing, the hearing at which it is decided whether your license will be revoked, if the hearing officer decides the person did not refuse, then the hearing officer will not revoke the person’s license and 2. If a judge or jury decides the person did not refuse the test, then the refusal should not be used against the driver as evidence of guilt.
If you or a loved one has been charged with a DUI and the police officer says you refused to take a chemical test, but you disagree, it is important that you contact an attorney because you may be right – you may not have refused under the law and if you did not refuse, it is important that you rights be protected. Please contact us for a free consultation. (303) 758-7700.