Updated: December 11, 2023 | Originally Posted: May 27, 2019
Table of Contents:
Don’t Blow This Important Decision
Whether or not you should refuse a breathalyzer test in Colorado if pulled over for suspicion of DUI is a question we hear every day. After seeing those flashing lights in your rearview mirror, deciding whether or not to submit to an officer’s request that you take a breathalyzer test or other blood, breath, or chemical test will profoundly impact what happens to you next.
What You’ll Learn in This Post:
- Whether you can refuse a breathalyzer test in Colorado depends on whether you refused to take a test before or after your arrest for DUI or DWAI and whether you are older or younger than 21 years old.
- In Colorado, you can refuse all pre-arrest testing requests – including a breathalyzer test – during the traffic stop prior to arrest if you are over 21 years old.
- If you refuse to test after your DUI arrest, you will lose your driving privileges and suffer a host of other severe consequences.
If you know that you may have had one too many drinks before getting behind the wheel, you may understandably have concerns that taking the test will show that your blood alcohol content (BAC) was above the legal limit. This would lead to your arrest for driving under the influence (DUI) or driving while ability impaired (DWAI).
And if you take a breathalyzer test AFTER police arrest you for DUI or DWAI, you may worry that you’ll be handing prosecutors the evidence they need to convict you.
But before you tell the officer “thanks, but no thanks” to their testing request, you need to understand what happens if you refuse a breathalyzer test. Whether you can do so without consequence or whether you will put your driving privileges and DUI defense at risk by refusing the test depends on two factors:
- Did you refuse to take a test before or after your arrest for DUI or DWAI? and
- Are you older or younger than 21 years old?
Before A DUI Arrest: You Can Refuse a Breathalyzer Without Penalties
When Colorado Springs police pull you over due to a suspicion you are driving under the influence, one of their first requests will likely be to ask you to undergo one or more field sobriety tests (FSTs) to assess your condition and detect any impairment. These tests may include such familiar evaluations as the “one leg stand” test, the “walk and turn” test, or the Horizontal Gaze Nystagmus Test (during which the officer will shine a stimulus like a penlight your eyes and instructs you to follow it to the left and the right). Colorado Springs police may also request that you submit to a breathalyzer test.
In Colorado, you can refuse all pre-arrest testing requests – including a breathalyzer test – during the traffic stop prior to arrest if you are over 21 years old. (If you are under 21, you must submit to a pre-arrest breath test if the officer reasonably suspects that you have consumed any alcohol.)
You are well within your rights to refuse a breathalyzer, and any other field sobriety test, prior to your arrest without any penalties or consequences. The results of any FST and your refusal to consent to such testing cannot be used as evidence against you in court.
Of course, refusing pre-arrest testing does not mean you cannot be arrested for DUI if your driving behavior or other visible signs of intoxication – such as alcohol on your breath or an open container in your car – give them a reasonable suspicion that you are impaired.
And once police do arrest you for DUI, the issue of breathalyzer test refusal becomes more complicated and consequential.
You’ve Already Agreed To Take a Post-Arrest Breathalyzer Test, Whether You Know It Or Not
You may not know it, but you have already agreed to submit to a breathalyzer or other blood, breath, or chemical test after being arrested for DUI or DWAI. Like many other states, Colorado has an “express consent” law.
The express consent law means that by getting behind the wheel and driving on a road or highway in Colorado, you have already given your consent to blood, breath, or chemical testing if an officer validly arrested you for suspicion of DUI or DWAI.
A valid arrest is one where the officer had probable cause to believe you were driving under the influence because of how you were driving, what you said, and how they think you performed in any pre-arrest FST.
You Might Like: Can I Get a DUI While Parked?
If You Refuse a Breathalyzer Test After Your DUI Arrest
Refusing (or revoking your consent to) a post-arrest blood, breath, or chemical test in Colorado, however, comes with some severe consequences, including:
- Automatic suspension of your Colorado driver’s license for one year (though you can apply for – but by no means are guaranteed – a reinstatement of driving privileges after two months).
- Designation as a Colorado “persistent drunk driver,” even if it is your first DUI arrest.
- Participation in a mandatory alcohol and drug education and treatment program.
- An ignition interlock device on your vehicle for at least one year after restoring driving privileges.
- Carrying SR-22 insurance even if you are found not guilty of DUI.
Additionally, when you refuse a breathalyzer post-arrest, this can be used against you at trial as evidence of your guilt. Of course, if you submit to testing and the results show that your BAC was over the applicable legal limit, prosecutors can also use those results against you.
So, while you can refuse to submit to blood, breath, or chemical testing after your arrest, you will have to deal with the penalties mentioned above for that refusal since you have no legal right to say no.
One Thing You Should Never Refuse When Facing a DUI is Help From an Experienced DUI Attorney
Whether or not you should submit to or refuse a breathalyzer test in Colorado is just one of many critical choices you face with a DUI. That is why contacting an experienced Colorado DUI defense attorney as soon as possible after your arrest is vital to your freedom.
As former DUI prosecutors themselves, the criminal defense lawyers at James Newby Law use their unique insights and experience to protect the rights of individuals facing DUI charges. Their experience means they know how to challenge every aspect of the prosecution’s case. They aggressively and strategically fight the allegations against their clients to put them in the best position to obtain a positive outcome.
Put our former prosecutor advantage to the test today with your free, confidential initial consultation.