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

If you are pulled over for DUI in Colorado but have not been arrested, you may refuse to take the preliminary roadside breath test (unless you are under 21). If you get arrested, though, the state’s “express consent” law requires you to take a chemical blood or breath test.

In short, you can – and should – refuse any pre-arrest tests. Post-arrest, however, refusing tests is illegal.

Refusing to take a chemical test following a DUI arrest triggers a one-year driver’s license revocation and a persistent drunk driver designation. This means you must carry SR-22 insurance, complete a drug/alcohol program, and drive with an ignition interlock device (IID) for two years.

Here are three key things to know:

1. You can usually resume driving after only two months if you get an IID and complete the alcohol/drug program.
2. Refusing the chemical test will cause your license to be revoked even if your DUI charges get dropped.
3. 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 years

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

• 1. Pre-DUI Arrest
• 2. Post-DUI Arrest
• 3. Penalties
• 4. Should I refuse anyway?
• 5. Fighting the License Suspension
• Additional Reading

1. Pre-DUI Arrest

When a law enforcement officer pulls you over in Colorado, first they observe you for signs of intoxication, such as:

• the odor of alcohol or marijuana,
• bloodshot and glassy eyes,
• slurred speech,
• an admission that you have been drinking or doing drugs, and
• fumbling while retrieving your license, registration, and insurance.

The officer may then ask you to take a preliminary breath test to screen your blood alcohol concentration (BAC). You may decline without penalty as long as you are 21; if you are under 21, you are required to take this test if the officer reasonably suspects you consumed alcohol.

The following table shows the illegal BAC thresholds for each drunk driving crime:

Colorado DUI Crime	Illegal BAC
DUI per se (driving under the influence)	0.08% and higher
DWAI (driving with ability impaired)	Above 0.05% to less than 0.08%
Commercial DUI	0.04% and higher
UDD (underage drinking and driving)	0.02% and higher

An advantage to taking a preliminary breath test is that if you “blow “negative” and show a legal BAC, 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 (FSTs), 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 motorists fail even when sober, so our advice is to politely decline to take them.

In practice, the police typically get angry when you refuse the preliminary breath test and/or the FSTs even though none of these tests is very reliable. Refusing anything will likely lead to you being arrested and taken to the station.²

2. Post-DUI Arrest

As a driver in Colorado, you are presumed to give your “express consent” (also called implied consent) to take an evidentiary chemical test following an arrest for DUI, DWAI or underage DUI. Therefore, you cannot legally refuse the test.

You do have a choice to take either a breath test or blood test to measure your BAC. This test should occur within two hours of your driving. (In rare cases, police ask for saliva or urine.)

The advantage of breath tests is that they deliver immediate results. However, even though they are more accurate than preliminary breath tests, they are less reliable than blood tests. Meanwhile, blood tests can be painful, and it takes weeks to get results.

Note that if police suspect you of drugged driving, you must take the blood test. This is because breath tests do not detect drugs, only alcohol.¹

3. Penalties

Refusing the chemical breath or blood test following a drunk/drugged driving arrest in Colorado carries three main consequences:

The first is a one-year revocation of your Colorado driver’s license. However, you can apply for reinstatement of your driving privileges after only two months if you take a Level II Alcohol and Drug Education and Treatment program and get an IID (ignition interlock device) installed in your car.

Note that if you have a prior refusal, your license revocation will be for two years. If you have two or more prior refusals, the revocation will last three years.⁷

The second consequence is that you will be designated as a “persistent drunk driver” (PDD) even if your BAC is below the typical PDD minimum of 0.15%. As a PDD, you must:

• Take a Level II Alcohol and Drug Education and Treatment program,
• Keep an ignition interlock device in your vehicle for at least two years following the restoration of your driving privileges, and
• Carry SR-22 insurance for three years even if you are not ever convicted of DUI.

Finally, should your case go to trial, the prosecutors 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 you refused the test because you knew you were guilty and were trying to hide your intoxication.³

DUI Penalties

Remember, the penalties for refusing are separate from any penalties you face if you are convicted of DUI or DWAI. These include fines, jail, community service, and an additional license suspension.

Furthermore, having a DUI on your record could hurt your prospects for employment, housing, education, professional licenses, and even friendships. That is why it is so important to hire legal counsel to fight these charges in pursuit of a dismissal or reduction.

4. Should I refuse anyway?

One advantage of refusing a chemical test following a DUI arrest is that there will be no proof of your BAC. 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, many of the consequences for refusing 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 (one year) is three months longer than the license revocation for a first-time DUI (nine months).⁴

In addition, if you choose to take a chemical test, there are various ways to challenge the results. For example, you can argue that:

• The breathalyzer was not calibrated correctly: Breathalyzers are known to deliver results that may be off by .005% to .02%.
• Your blood sample was contaminated in the lab: Possibly it could have been switched with someone else.
• You had a medical condition that caused a falsely high breathalyzer result. Examples include GERD or acid reflux.

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.⁵ All things being equal, it is probably best to submit to the chemical test.

5. Fighting the License Suspension

If you refuse a chemical test following a Colorado DUI arrest, the officer will confiscate your license and replace it with a seven-day temporary driving permit. If you wish to contest the license revocation, 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 revocation will kick in on the seventh day.

DMV hearings are actually more difficult to win than criminal trials. This is because the DMV can revoke your license based on only a preponderance of the evidence, whereas criminal courts require proof beyond a reasonable doubt before you can be convicted.⁶

Still, DMV hearings are worth doing. Sometimes evidence comes out during the DMV hearing that you can use in your favor during the criminal case.

Common Defenses

Here at Colorado Legal Defense Group, we have represented literally thousands of DUI defendants accused of refusing the chemical test. In our experience, the following three defenses can be very effective at persuading DMV hearing officers to let you keep your license.

1. You never refused the test. Maybe the police misconstrued your words as a refusal or even lied about you refusing.
2. Your refusal was beyond your control. For example, perhaps someone had spiked your drink and you were involuntarily intoxicated. Or perhaps you were suffering from a head injury, epilepsy, or another condition that caused you not to be in your right mind. (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.)⁷
3. The DUI arrest was illegal to begin with. If the police lacked probable cause to believe you were driving under the influence, then the arrest should not have occurred, and your refusal was moot. Helpful evidence in these cases is the police’s dashcam and bodycam footage of what led up to your arrest.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do – Criminal Justice.
• Shed Thou No Blood: The Forcible Removal of Blood Samples from Drunk Driving Suspects – California Law Review.
• Do I Really Have a Choice – Compulsory Blood Tests on Drunk Drivers and the Fourth Amendment – Western State University Law Review.
• Drunk Driving, Implied Consent, and Self-Incrimination – The Journal of the American Academy of Psychiatry and the Law.
• Taking Blood Evidence for Granted: McNeely and Birchfield’s Unintended Consequences – Stanford Law School.

Also see our related articles on Colorado DUI chemical tests: Breath, blood, refuse? and How long is the license suspension for a chemical test refusal in Colorado?

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