The lawyers at law firm of Law Offices of Clifton Black, P.C. are often asked if a person is required to perform the roadside sobriety tests and/or blood, breath or urine tests in Colorado when they are pulled over for a traffic violation. We are often surprised at the number of people who are not sure if they must do the roadside tests or chemical tests simply because a police officer is requesting them to perform the tests. As a nation that was established in personal freedoms, and against our rights being violated, we believe every driver should know what the law requires them to do and what is voluntary.
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 Nystgmous, 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 nystgmous – 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.
Roadside tests are voluntary in Colorado, a driver is not required to complete them.
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.
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. 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.
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. (See Link: DMV).
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 (see Missouri v. McNeely). As of this writing, this is new case law and seemingly a warrant most likely will be applied for and signed by a judge in a vehicle homicide or vehicular assault allegations with a suspicion of alcohol, drugs, or marijuana being involved. 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.
Officer’s observations: In addition to roadside tests and blood, breath or urine tests, the police officer his using 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.
A person can minimize these observations by informing the office of the very basics to allow the officer to complete the stop or investigation. Below are driver rights that can be printed out and keep with your license to drive so that a person can refer to them to recall what their rights are.
2 N. Cascade Ave., Suite 1120
Colorado Springs, Co 80903
Law Offices of Clifton Black, P.C. does not advocate driving under the influence of any substance.
We do, however, oppose a person’s rights being disregarded by government employees guaranteed under the Constitution and our laws.
Please review this card so you are aware of your basic rights under the law.
Always be polite to law enforcement. 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.
4th Amendment Right Against Searches & Seizures: You’re not required to give an officer permission to search your person, home, or property. An officer may have a legal right to search, but you should never consent. If an officer is going to search tell the officer you object. Do not physically prevent a search. If it was done illegal, it may be suppressed by a judge.
5th Amendment Right to Remain Silent: Only provide your name & address. For other questions invoke your 5th amendment right. Voluntary statements may be used against you. You’re not required to tell police any other information. Do not discuss your MMJ use or use of anything else. The officer will attempt to question you in detail to use all your answers against you.
6th Amendment Right to an Attorney for Questioning: If an officer attempts to question you beyond your name & address, politely request an attorney. You’re not required to have an attorney at that moment, but it requires the officer to cease questioning in custody until you are given a chance to get an attorney.
Roadside Tests: In Colorado, you are not required to do roadside tests. These tests are voluntary; the officer is only trying to build evidence against you. Innocent people get convicted if the officer is not satisfied with how the roadside tests are completed. Common tests are: Eye test, walk & turn: balancing, portable breath test, alphabet, counting, or any other road test.
Express consent: In Colorado a driver is required to do a chemical test if there is probable cause that the driver is under the influence or impaired. If the officer suspects alcohol it is the driver’s choice between a blood or breath test. If the officer suspects drugs, it is the officer’s choice between blood or urine. Failure to submit to a chemical test will result in a revocation of your driver’s license.