Can I Refuse to Take a Breathalyzer Test in Colorado?

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Getting pulled over for a DUI can be your worst nightmare come true. According to Mothers Against Drunk Driving (MADD), more than

121 million Americans

drive drunk each year, and just over 1% end up with a DUI charge.

If you are pulled over for a DUI in Colorado, you may want to do everything that the officer asks in the hopes that they will either let you go or be lenient. Unfortunately, this isn’t how these situations play out. When you cooperate too much, you could be jeopardizing your rights. A common question surrounding Colorado DUIs is whether you are required to take a breathalyzer test.

What is Expressed Consent?

Colorado is an “implied” or “expressed consent” state, meaning that you have already given law enforcement permission for a breath or blood test if you are arrested for driving under the influence (DUI) or driving while impaired (DWAI).

Under this law, you are compelled to take a test upon arrest and within two hours of the time that you last drove a vehicle. There are exceptions for reasonable delays due to weather, traffic, equipment failure, etc. You are also allowed to choose the test that you take but cannot change your mind once you’ve made a choice.

Roadside Tests

The law of express consent is not applicable to roadside sobriety tests (involving asking a suspected drunk motorist to walk and turn or stand on one leg) undertaken by a police officer. Such tests are not chemical tests (which you cannot legally refuse) and are administered by law enforcement officers to understand if a person may be over the legal limit and operating a vehicle under the influence of alcohol or drugs.

Breath vs. Blood Tests in Colorado

When arrested for DUI, drivers can typically choose whether to submit to a breath or blood test. However, blood tests are necessary when law enforcement suspects that the defendant is under the influence of drugs or has passed away. On the other hand, breath tests are mandatory for defendants below 21 and whose only offense is underage drinking and driving.

In comparison to a blood test, a breath test is less invasive. But blood tests are more precise than breath tests. The defendant can provide the blood sample for independent testing as well.

Can I Refuse to Take a Breathalyzer Test in Colorado?

There is often confusion between the requirement under Colorado law to submit to a chemical test upon arrest, and the requirement to take a field sobriety or preliminary breath test. When you are stopped for a DUI, the only thing that you must do is hand over your license and registration when asked and step out of the vehicle if requested to do so. You don’t have to answer questions about whether you’ve been drinking, and you certainly are not required to participate in a field sobriety test.

If an officer tells you to blow into a device on the side of the road, they are really asking you to this. Under Colorado law, you have no obligation to agree to a preliminary breath test, and there are no penalties for refusal. The only exception is if you are under the age of 21, in which case you must agree to this test.

Penalties in Colorado for Refusing a Chemical Test

Once an officer decides that there is enough evidence to warrant a DUI charge, you will be placed under arrest and taken to the police station. At this point, you must agree to take a chemical test, or there will be penalties under Colorado law. Refusing to submit to this test will have consequences that include:

  • Automatic driver’s license suspension for one year, although you may apply for a provisional reinstatement after two months (this is not a guarantee);
  • Being designated as a “persistent drunk driver” in Colorado, even on your first offense;
  • Mandatory participation in a drug and alcohol treatment and education program;
  • Having an ignition interlock device placed on your vehicle for one year following the restoration of your driving privileges; and
  • The requirement to carry SR-22 auto insurance, even if you are found not guilty of DUI.

In addition to these harsh penalties, your refusal to take a chemical test can be used as evidence against you in your DUI case. It’s important to realize that you can still be arrested for DUI, even if you refuse to take this test. Whether you agreed to the test or not, a skilled DUI lawyer can explain your options and take immediate steps to safeguard your rights.

Speak with a Qualified Colorado DUI Lawyer About Your Rights

When you’ve been accused of DUI, facing these charges can be a terrifying prospect. At Anderson & Carnahan, Attorneys at Law, our experienced

Colorado DUI attorneys

stand up for the rights of people accused of DUI.

Handing a DUI case on your own is not something that we recommend. A DUI conviction, even for a first-time offense, can carry stiff penalties that will impact your ability to get a job, find a place to live, and even get affordable insurance. Contact our Colorado Springs office now at (719) 473-9099 or

reach us online

to schedule a free consultation so that we can discuss the potential defenses for your case.