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Refusing a Breath Test and “Express Consent”

Refusing a breath testWhen a cop pulls you over, for any reason whatsoever, it is hard to know how to best handle the situation. No one enjoys seeing the cherries and berries in their rearview mirror, and even worse is being pulled over when you know you might be breaking a law. If you are pulled over under the suspicion of drinking and driving, it is very likely that an officer will ask you to take a breathalyzer test. In this moment, you have to decide whether or not you will concede to taking the test. You do have the right to refuse to take the test. However, Colorado has a specific law that regulates this process called, “express consent.” What does express consent mean for you? Should you refuse to take a breathalyzer, and if you already have, what consequences might you face? Read on to learn more about breath tests and your rights from a local DUI lawyer in Fort Collins.


key in a glassIn Colorado, if a police officer pulls you over with probable cause that you are breaking state laws and Driving Under the Influence (DUI) he will likely ask you to take a breath or blood test. Colorado is called an express consent state, which means that it is expected that any driver will consent to a chemical test when they are asked to do so. However, it is still within your legal rights to refuse a breath or blood test. Due to Colorado being an express consent state, though, you will face consequences for going against the expectation of your consent. If you have not been drinking, there is absolutely no reason to not take one of the tests, as the results of doing so will not work in your favor.

When you refuse to take a breathalyzer or blood test, you will be penalized by having your driving privileges taken away from you. The officer can still arrest you and charge you with a DUI. The issue with refusing to take either test is that it makes building a defense in court nearly impossible. While you may think that by not taking a test there is no proof you were drinking, the reality is the court will look at your refusal as an admission of guilt. Why, after all, would you refuse to take a test that would have proven your innocence? Therefore, although you technically have the right to refuse to take a chemical test, the odds will immediately be stacked against you the moment you do.


If you are asked to take a test, you will be given the option of taking a breath test, often referred to as a breathalyzer test or a blood test. If you choose the breath test, you will be asked to blow into a breathalyzer or intoxilyzer machine. You will be asked to take the test two different times with a two-minute pause in between to determine if the results are close enough to be within a margin of error. The lower of the two readings will be recorded. If the breath test yields a Blood Alcohol Content (BAC) result higher than .08 you will have your license suspended immediately. At this point, you are allowed to request a hearing to challenge the suspension of your license, but you must do so within seven days of the test. At this point, the best course of action is to consult a DUI lawyer to determine if it is worth asking for a hearing. Although it might be a tough fight to overturn the suspension, it is often worth the battle and it does not hurt to at least request a hearing. You will also at this point be given a summons for a court hearing for the charge of Driving Under the Influence.

If you opt for the blood test, you will be taken to a hospital to have your blood drawn. The biggest difference between the breath test and the blood test is the length of time it takes to find out the results. Your blood will be sent to a lab and you will be allowed to keep your license pending the results from your blood test. However, you will still be sent away with a summons for a DUI, as the only reason the officer would ask for a blood test is due to having probable cause for arresting you for a DUI.


glass and keySo what is the best option when you are asked by an officer to consent to a chemical test? The answer is not black and white. Refusing the test undoubtedly lands you in a sticky situation. It may feel like a good option in the moment because you are worried about your BAC, however, in the long run, it will likely result in a DUI charge simply due to the appearance of guilt. It may seem unfair that the right to refuse is essentially a misrepresentation of your rights, but it is the reality you face in the state of Colorado.

If you do opt for a test, which one should you take? In reality, there is no definitive answer on the ideal test. If you test over.08 BAC you will be facing a DUI whether it was through a blood test or a breath test. If you are reading this blog, you might already be past the point of making this choice. Your next step should be to reach out to a DUI lawyer for assistance.


Once you are charged with a DUI, you need to immediately begin building your defense. It is critical that you hire a DUI lawyer who is equipped to build you an aggressive defense. Even though it may seem hopeless once a test has been taken, a DUI lawyer still can build you a case. Not only can a DUI lawyer work on proving the test inaccurate, but they can also focus on helping you fight for lesser penalties. Keep in mind that if you blow over.08 BAC or your blood test renders results greater than .08 BAC, you could face any of the following penalties:

  • Jail time
  • Loss of driving privileges
  • Extensive fines
  • Community service requirements
  • Alcohol education class attendance
  • Ignition interlock device installation

Ready to start building a defense? Contact a DUI lawyer in Fort Collins today, or fill out the form below. We will work to help you fight for your rights.


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