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DUI Test Refusal

Law enforcement will use chemical testing to determine the level of drugs or alcohol in a driver’s system when they are suspected of driving under the influence. Colorado is an expressed consent state, meaning you agree to DUI testing by driving on state roadways. You have the right to refuse chemical testing, but you should first be aware of the pros and cons of doing so.

Results from a chemical test will be used to determine if you were driving under the influence. Without this evidence, prosecutors will have a difficult time proving you were driving while intoxicated. It should be noted, though, you will be penalized for refusal and prosecutors may use your refusal against you.

DUI Defense Attorney in Colorado Springs, CO

You will need a proven DUI defense attorney if you are suspected of driving under the influence. Regardless if you refused a DUI test, you have an uphill battle ahead of you. Let Law Offices of Clifton Black, PC fight on your behalf. We will use our decade of DUI defense experience to your advantage.

Call (719) 328-1616 to schedule a time to speak with us more about your case. Law Offices of Clifton Black, PC defends those accused of DUI in Colorado Springs, Denver, and Littleton.


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Difference Between Roadside Tests and Chemical Tests

First, it is important to understand the difference between roadside tests and chemical tests so the driver is clear what is required and what is not required.

Roadside tests consist of a serious of tests created to divide a person’s attention while the police officer looks for signs of impairment or intoxication.  The main roadside tests are:

  • Horizontal Gaze nystagmus: Also known as the HGN or eye test. In this test the officer takes an object like a pen, flashlight or finger and asks the driver to follow the object while holding his or her head still.  The officer is looking for clues like lack of smooth pursuit and nystagmus – eyes bouncing or twitching.
  • Walk and turn: The driver is asked to walk a real or imaginary line heel to toe and take a series of small turns to complete a 180 degree turn and do the same heel to toe walk back.  The officer is looking for a driver that steps off the line, misses heel to toe, losses balance, forgets instructions and raises arms.
  • One leg stand, balancing test: The driver is asked to stand on one foot and hold the other off the ground and count while the police officer looks to see if the driver is swaying, raising arms, hoping, putting the raised foot down.
  • Alphabet: The driver is asked to recite the alphabet without singing it.  The police officer is looking to see if the driver gets confused, by skips letters, or just stops.  An officer should not be asking a driver to recite the alphabet backwards as this is a skill that must be learned and practiced.
  • Counting: The driver is asked to count backwards, usually from numbers like 22 – 11.   Similar to the alphabet, the police officer is looking to see if the driver gets confused, forgets what number to stop at or skips any numbers.
  • Portable breath test (PBT): The driver is asked to blow into a handheld breath testing device that provides a preliminary breath alcohol content.  This breath test should not be confused with breath testing machines that are much larger, sit on a desk, table or cart as discussed below.  The Portable breath test (PBT) is not a scientifically reliable test and the results of the test are not admitted as evidence in a Colorado DUI trial.

Chemical tests are tests deemed to be scientifically accurate to determine the substance in a driver’s body.  In Colorado when a police officer believes the driver is under the influence of alcohol alone, it is the driver’s decision between blood test or breath test.  When the police officer suspects the driver is under the influence of drugs or drugs & alcohol it is the officer’s decision between blood or urine.

  • Blood test: The blood test is normally taken at a hospital but can also be taken at other locations. Usually 2 vials of blood are taken, one to test and send the results to the prosecution and Department of Motor Vehicles.  The other vial is preserved so that defense can conduct a separate test or retest.
  • Breath test: The breath test should not be confused with the portable breath test (PBT test).  The breath test is a large machine that is usually conducted at a police station.  These machines are also found on military basis and colleges.  The results of the test are available immediately.
  • Urine test: The urine test is normally conducted at the police station similar to the breath test.  However, the results are not available immediately.

A driver in Colorado is not required to perform the roadside tests.  These are considered voluntary roadside tests.  Police officers are trained to convince drivers to attempt to perform these tests so that they can gather evidence to aid in the prosecution of a driver.  An unethical police officer in Colorado will fail to inform the driver that the tests are voluntary or that the performance of the tests can be used as evidence against the driver in a DUI trial.

An ethical police officer will inform the driver that they are voluntary tests, but will still attempt to convince the driver to perform them.  Police officers will make statements like “if you pass I can allow you to drive home” or, “I just need to see if you can operate a vehicle safely.”  In reality, the police officer is more interested in observing what police believe are clues of intoxication.

In reality, many people fail these voluntary roadside tests, including police officers that practice them.  Performing roadside tests are not normal activities that a person participates in.  Similar to activities like running, jumping, dancing, hiking, skipping rope, or playing sports, the more you do an activity the better you become. Being asked to complete the voluntary roadside tests on a highway or roadway, usually at night, and without practice or being told what you are graded on is simply an unfair procedure with the results of the tests unfortunately used against a person in a criminal trial.  The eye test, although deemed more reliable than the physical tests, also has flaws.  A person may have a medical condition or other reason why their eyes do not function as the police officer believes they should.


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Can I Refuse a DUI Test?

The vast majority of DUI arrests stem from being pulled over because of a simple traffic violation like speeding or broken tail light. Colorado police are always on high alert for drivers driving under the influence. When they make initial contact, the officer will look for signs of intoxication such as bloodshot eyes, slurred speech or the smell of alcohol or marijuana.

If these signs are detected, the officer will ask if you’d been drinking or taken drugs. Regardless of the answer, the officer will ask you to step out of the vehicle. After further questioning and investigation, the officer will ask you to submit to a breath test at the scene if they suspect you are driving under the influence of alcohol. You can legally refuse a preliminary roadside breath test without being penalized. The story is different if you are asked to submit to a chemical test once arrested.

You may not be aware, but under the state’s expressed consent laws, you are deemed to have given consent to chemical testing by law enforcement when you drive on the Colorado roadways. This means you are required to comply with an officer’s request to take a chemical DUI test after you’ve been arrested. You have a right to refuse this test, but it does not come without consequence.


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How Do I Decline Roadside Tests?

How do I decline the voluntary roadside tests:  As lawyers that believe in a person’s individual freedoms, opposed to unlawful search and seizure of your person (especially on the side of a road or elsewhere), we believe drivers should decline to perform the voluntary roadside tests if they do not want to do them.  However, a person should always be polite to law enforcement officers. Upon lawful request, provide your basic identification information like name, address, and date of birth.  Legally you may decline to answer other questions. If stopped for a traffic violation, provide your driver’s license, insurance and registration. You can inform the officer that you invoke your Constitutional rights.

A person should simply say “no” or “no thank you” when a police officer is asking the driver to perform the roadside tests.

If the officer asks again, the driver should simply repeat the prior answer.  If the police officer persists the driver can simply stop responding or request an attorney (although the officer will not permit the driver to contact an attorney, it sends a message that the driver wants to exercise his or her constitutional rights).

As a caveat, the driver needs to be aware that the police officer can inform the jury that the driver refused to participate in the tests.  When we have a client that has performed the tests, we look to see if the driver did well or passed a majority of the tasks in the test, i.e. taking the full number of steps, turning properly, not losing balance, etc.

In addition to roadside tests and blood, breath or urine tests, the police officer will use his observations to gain additional information to use as evidence to help the district attorney garner a conviction against a driver.

In most police reports for DUI or DWAI arrests, the officer will indicate that upon initial contact with the driver he or she observed a strong odor of alcohol on the driver’s breath, slurred speech, red or watery eyes, flushed face, thick tongue, and/or fumbled around obtaining the driver’s license, insurance and proof of registration.  The police officer may also write in the police report that the driver had to use the vehicle door to get out to help get out, was unsteady when standing, used the vehicle for support while walking to the rear of the vehicle.  In DUI THC cases the officer will indicate that the persons tongue had a green or brown film on it.


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What Happens if I Refuse a Blood or Breath Test in Colorado?

Chemical tests (blood, breath and urine) are required in Colorado when an officer has justification to request the test.  When people drive in the State of Colorado they fall under state law of “expressed consent.”  This basically means that failure to comply with an officer’s justified request for a blood test, breath test or urine test can result in a revocation of a person’s driving privileges in the State of Colorado.  This revocation is also seen by other states that will then not permit the driver to obtain or renew a driver’s license.

Violating express consent laws will result in an administrative license suspension after seven days.

An officer will give you a choice between a blood and breath test if you’re over the age of 21. It’s important to note refusing field sobriety tests or a portable breath test (PBT) isn’t a violation of express consent laws. Express consent laws only include blood or breath analysis.

According to the Supreme Court, a police officer cannot physically force a person to submit to a blood test without a search warrant signed by a judge for the specific suspect.  (link to Missouri v. McNeely).  As of this writing, this is new case law and seemingly a warrant most likely be applied for and signed by a judge in a vehicle homicide or vehicular assault allegations.  The result of a refusal is a revocation of the driver’s license.  Also, the refusal can be presented as evidence in a criminal trial or hearing with the DMV.

Listed below are the suspension terms for refusing DUI testing in Colorado.

  • 12 months for the first refusal;
  • 24 months for the second refusal; and
  • 36 months for the third refusal

After two months you can reinstate your license, but only if you do the following:

  • Install an ignition interlock device for two years;
  • Enroll in a Level II Alcohol/Education program; and
  • File an SR-22 Insurance Certificate (even if you’re not guilty of DUI)

You can fight your license suspension with a hearing at the Colorado Department of Motor Vehicles (DMV). However, you must act quickly. You only have seven days to file a request for an administrative license hearing. At the hearing you can hire legal representation to fight your license suspension. It can be a good opportunity to cross-examine the police officer who arrested you because there won’t be any District Attorney present.


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What Happens if I Refuse DUI Testing and I’m a Commercial Driver?

Commercial drivers have a different set of rules when it comes to DUI test refusals. If you have a commercial driver’s license (CDL) or learner’s permit, then your first refusal will result in a minimum revocation of your CDL for one year. If you were carrying hazardous chemicals, then the minimum revocation period for your CDL will be three years.

A second DUI refusal will lead to a lifetime revocation of your CDL. You can only reinstate your commercial driver’s license after 10 years have passed and you have successfully completed a state-approved alcohol or drug rehabilitation program. If you refuse DUI testing or are charged with DUI for a third time, then your license will be suspended for life without a chance for reinstatement.


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Should I Refuse DUI Testing in Colorado?

It’s a complicated question: “Do you refuse breathalyzer or blood testing for DUI?” Refusing and failing a chemical DUI test has its pros and cons. If you submit, you might pass and be let go. However, failing a chemical test will result in automatic DUI charges by law enforcement.

Refusing chemical tests have its own consequences, but those penalties are much lighter than a DUI. It may be a good idea to refuse testing, so the prosecution doesn’t have concrete scientific evidence of you driving drunk.  You can also fight your license suspension with an express consent hearing at the DMV. If you’re successful at the hearing, your license will be reinstated.

A DUI conviction could impact your professional and personal goals. On the other hand, a license suspension and SR-22 could hinder your daily life. It’s a hard choice no matter what, so it’s important you take the decision very seriously and call an experienced attorney.


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Additional Resources for DUI Test Refusal

Express Consent Laws – Visit the official website for the Colorado Department of Revenue (CDOR) to learn more about express consent laws. Access the site to learn the suspension terms for failing a chemical test for people over the age of 21 and under.

Required DUI Classes in Colorado – Visit the official website of the Colorado Department of Human Services to learn more about their DUI services. Access the site to see their DUI alcohol or drug rehabilitation programs, their therapy programs and how providers for IID.


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DUI Lawyer Explains Test Refusals in El Paso County,

If you or someone you know has refused a chemical DUI test in Colorado, it’s vital you gain legal representation. An attorney can assess the situation to find out what the next best step moving forward is. You can find a skilled DUI lawyer today by calling Law Offices of Clifton Black, PC.

The attorneys at Law Offices of Clifton Black, PC excel at criminal defense, especially DUI law. Call us now at (719) 328-1616 to set up a consultation today. We practice throughout the greater Colorado Springs area including Manitou Springs, Peyton and Fountain.


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Law Offices of Clifton Black, P.C.