In Colorado, a preliminary breath test is a roadside portable breathalyzer given to motorists suspected of DUI. Drivers are not required to submit to this test and it can be used as evidence against them in court. Most defense attorneys advise that a person should politely decline to blow into the device.

In this article, our top Colorado DUI defense lawyers explain:

• 1. Colorado’s express consent law
• 2. The difference between a preliminary and evidentiary breath test
• 3. Can I refuse a preliminary breath test?
• 4. Should I ever agree to a preliminary breath test?

1. Colorado’s express consent law

When you drive in Colorado, you give your express consent to an evidentiary (post-arrest) chemical test if you are lawfully arrested on suspicion of:

• DUI (driving under the influence),
• DUI per se (driving with a BAC of .08% or higher),
• DWAI (driving while ability impaired), or
• UDD (underage drinking and driving).¹

There are serious consequences for refusing to take a Colorado DUI breath test or other chemical test following a lawful arrest.

However, the rule does not apply to pre-arrest breath testing or other Colorado field sobriety tests.

2. The difference between a preliminary and evidentiary breath test

After an officer pulls you over, he or she will ask for your license and registration. Legally, you are required to give these to the officer.

The officer will usually also ask you several questions. Other than providing your name, you are not obligated to answer. There is no law requiring you to incriminate yourself. In particular, you do not need to answer questions such as:

• Have you been drinking?
• Where are you coming from?
• How much have you had to drink?
• Have you used any drugs tonight?
• Do you think you are drunk?

If the officer reasonably suspects you of DUI, DWAI or underage drinking and driving (UDD), however, you may also be asked to take a preliminary breath test on a handheld device. The officer is supposed to tell you that you may legally decline to take it — though as a practical matter, this doesn’t always happen.²

3. Can I refuse a preliminary breath test?

If you are at least 21 years old, you may decline to take a preliminary (pre-arrest) breath test. It is nothing more than a Colorado field sobriety test (FST). Like all field sobriety tests, it is simply a tool to help the officer decide whether there is probable cause to arrest you for drunk driving.³

There are no consequences for declining to take a Colorado preliminary DUI breath test if you are at least 21.

Drivers under the age of 21 must submit to a roadside breath test if the officer reasonably suspects that they have consumed any alcohol.⁴.

If you are under 21 — or you are at least 21 and actually arrested for DUI or DWAI — consequences of refusing an evidentiary (post-arrest) breath test include:

• Automatic suspension of your Colorado driving privilege,
• Designation as a Colorado “persistent drunk driver” (PDD),
• Ignition interlock restricted license following restoration of your driving privilege,
• Mandatory alcohol / drug education and treatment program, and
• SR-22 insurance even if you are not guilty of drunk driving.

4. Should I ever agree to a preliminary breath test?

The results of a preliminary Colorado breath screening test cannot be used against you in court. Nor can the fact that you refused to take a preliminary breath test. A pre-arrest breath test or other FST can only be used by a judge to determine if there was probable cause for the officer to arrest you. A jury will never hear the evidence.

There is, however, one advantage to agreeing to a preliminary DUI breath test if you are at least 21. If the test shows a blood alcohol concentration (BAC) of.05% or less, the officer will most likely let you go.⁵

However, many of the best Colorado DUI lawyers agree – unless you are under 21 or you are fairly certain that your BAC is no higher than .05%, it is probably better to politely decline to take a preliminary breath test and to take your chances with being arrested based solely on other evidence.

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