What happens if I refuse the DUI breath or blood test in Colorado?

Colorado law requires you take a blood or breath test following a DUI arrest. Refusing to take a chemical test can lead to (a) an automatic one-year driver’s license suspension and (b) getting designated as a persistent drunk driver.

Here are four key things to know:

1. 1. You can contest the license suspension at a DMV administrative hearing.
   2. Refusing the chemical test will jeopardize your license even if your DUI charges get dropped.
   3. A refusal also requires you to carry SR-22 insurance, use an ignition interlock device for one year, and complete a drug/alcohol program.
   4. If you pick up another DUI and refuse the chemical test again, your license suspension will last longer, as this chart shows:

Refusal to take a chemical test after a DUI arrest	License suspension period in Colorado
1st time	1 year
2nd time	2 years
3rd or subsequent time	3 years7

To help you better understand the consequences of refusing to take a drunk driving chemical test, our Colorado DUI defense lawyers discuss the following:

• 1. What is Colorado’s “express consent” law?
• 2. How is a “preliminary” roadside breath test different?
• 3. What are the penalties for refusing a DUI test?
• 4. Should I take the Colorado DUI chemical test?
• 5. What are the defenses to DUI test refusals?

Also see our general article on Colorado DUI chemical tests: Breath, blood, refuse?

1. What is Colorado’s “express consent” law?

Driving in Colorado requires you to give your “express consent” to take an evidentiary chemical test following an arrest for:

• Driving under the influence (DUI), which is driving impaired even if your BAC is legal,
• DUI “per se” , which is driving with a BAC of .08% or higher whether or not you sober,
• Driving while ability impaired (DWAI), which is typically charged when your BAC is above .05% but less than .08%,
• Underage drinking and driving (UDD), which is driving with a BAC of .02% to .05% while under 21 years old, or
• DUI of drugs (DUID) or DUI of marijuana, which is driving while impaired by narcotics, prescription drugs, or OTC drugs.

Chemical tests in Colorado consist of a DUI breath test or DUI blood test. (In rare cases, police ask for saliva or urine.) These tests should occur within two hours of your driving.¹

Note that if police suspect you of drugged driving, you must take the blood test. Breath tests do not detect drugs, only alcohol.

The advantage of breath tests is that they deliver immediate results; however, they are less reliable than blood tests. Meanwhile, blood tests can be painful, and it takes weeks to get results.

2. How is a “preliminary” roadside breath test different?

When a law enforcement officer first pulls you over, they may ask you to take a preliminary breath test to screen for your blood alcohol concentration (BAC). Legally you may decline to take this preliminary breath test without penalty.

The one advantage to taking a preliminary breath test is that if you blow “negative” (less than 0.05% BAC, or .02% if you are under 21), the officer might let you go. Still, the preliminary breath test is just one factor police use in determining whether there is probable cause to arrest you. Police will likely ask you to perform field sobriety tests, consisting of:

• the one-legged stand,
• the walk-and-turn, and
• the horizontal gaze nystagmus (eye test).

Like the preliminary breath test, the field sobriety tests are optional. The majority of motorist fail, so our advice is to politely decline to take them.

If you are arrested for driving under the influence, you will be taken to the station and administered an evidentiary chemical test – the breath or blood test. This is the chemical test to which you have given your “express consent” to take, as discussed above. As discussed below, refusing to take or complete this post-arrest test has serious consequences.

3. What are the penalties for refusing a DUI test?

Consequences of a Colorado DUI chemical test refusal include:

• One-year automatic suspension of your Colorado driver’s license (although you can apply for reinstatement of driving privileges after two months) and
• Designation as a “persistent drunk driver” (PDD),² which means you must:
  • Take an alcohol and drug education and treatment program,³
  • Keep an ignition interlock device in your vehicle for at least one year following the restoration of driving privileges,⁴ and
  • Carry SR-22 insurance even if you are not guilty of DUI.⁵

Additionally, should your DUI or DWAI case go to trial, your refusal to take a chemical test will be admissible as evidence of guilt.

The prosecutor will present your refusal as the reason they do not have any BAC results to show the judge or jury. The prosecutors can also argue that your reason for refusing the test was to try to hide your intoxication.⁶

Length of the license suspension

Note that the length of your license revocation will increase if you have prior refusals:

• First refusal: 1-year suspension
• Second refusal: 2-year suspension
• Third or subsequent refusal: 3-year suspension⁷

See our related article, How long is the license suspension for a chemical test refusal in Colorado?

Requesting an administrative hearing

If you refuse a chemical test following a Colorado DUI arrest, the officer will confiscate your license and replace it with a 7-day temporary driving permit. You (or your attorney) must request an administrative hearing with the DMV during that time.

If you do request a hearing within those seven days, you can continue driving pending the results of the hearing. Otherwise, the suspension will kick on on the seventh day.

Getting a restricted license

If your license is suspended due to refusing a DUI chemical test in Colorado, you can request a restricted license two months into the suspension period if you:

• complete the required drug/alcohol education and treatment program; and
• get an ignition interlock device installed in your car(s).

4. Should I take the Colorado DUI chemical test?

One advantage of refusing a chemical test is that there will be no proof of your BAC being over the legal limit for a DUI “per se” (.08%) or a persistent drunk driver designation (.15%).

On the other hand, you can still be charged with DUI or DWAI based on your actual driving and other external evidence of inebriation. Then of course, there are the consequences that follow from the refusal itself, as set forth above.

Many of these consequences are more serious than an actual DUI or DWAI conviction, especially if it is your first. For instance, the license revocation for a first-time refusal (1 year) is longer than the license revocation for a first-time DUI (9 months).

In addition, if you choose to take a chemical test, those test results are open to challenge, making a conviction potentially more difficult. The only significant way to challenge a chemical test refusal, on the other hand, is to challenge the arrest itself.

Plus if you refuse a chemical test, the officer can restrain you and take a forced blood draw anyway. So the state will likely get your BAC whether you consent or refuse.⁸ All things being equal, it is probably best to submit to the chemical test.

5. What are the defenses to DUI test refusals?

If you refuse a chemical test, there are ways to challenge your license suspension at your DMV administrative hearing.

One way is to claim your arrest was not lawful because either:

• You were not driving,
• The officer lacked probable cause to arrest you, or
• The officer failed to advise you of your rights.

Another defense is to claim your refusal was beyond your control because you were suffering from:

• a medical condition (such as epilepsy or a head injury) or
• involuntary intoxication (such as from someone spiking your drink).

This “beyond your control” defense applies only when you did nothing to cause yourself to lose control. If you were voluntarily intoxicated, this defense will not work.

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