man refusing a breath testIf you have been pulled over on the suspicion of intoxicated driving, you may be asked to take a breathalyzer test or another type of field sobriety test (FST). This raises an important question: Do you have the right to refuse a breath test in Colorado?

While this is a seemingly straightforward question, it does not have a simple answer. In this article, our top-rated Colorado DUI defense attorney explains the most important things that you need to know about Colorado breathalyzer law.

What Happens If You Refuse to Take a Breath Test in Colorado?

Colorado Has an Express Consent Law

Under Colorado law (Colo. Rev. Stat. § 42-4-1301.1), all drivers automatically give their ‘express consent’ to submit to a chemical test — potentially including a breathalyzer — following a DUI arrest. In other words, if you were arrested for intoxicated driving in Colorado, you are required to take a breath test. If you refuse to do so, you will be subject to automatic penalties.

You Can Refuse a Preliminary Breath Test

Notice the use of the words ‘arrest’ and ‘arrested’ in reference to Colorado’s express consent law. Obviously, being arrested is not synonymous with being pulled over. If you are pulled over by a state or local law enforcement officer in Colorado, you may be asked to blow as part of a preliminary breath test.

Put another way, a police officer may ask you to take a breath test even though you have not been placed under arrest. You are not required to take a pre-arrest breathalyzer test. In fact, you can decline to take any field sobriety test without penalty — assuming that you have not been arrested.

The Bottom Line: Refusing to take a post-arrest breath test can subject you to automatic penalties. By driving in Colorado, you have given your express consent to take chemical tests following a DUI arrest. However, you are not required to take a breathalyzer if you have not been arrested. Make sure you know whether or not you are under arrest.

Penalties for DUI Refusal in Colorado

As you have no obligation to take a preliminary breath test, there is no penalty for a refusal. Further, a pre-arrest refusal cannot be used as evidence against you in any subsequent drunk driving case. That being said, refusing to blow in a breathalyzer after an arrest will come with penalties.

To start, your driver’s license will be automatically suspended for a period of one year. Though, under a 2014 state law, drivers have the right to apply for reinstatement after two months. Whether or not reinstatement will be granted depends on a number of different factors.

Beyond losing your driving privileges, refusing to take a post-arrest breath test will also result in you being designated as a ‘Persistent Drunk Driver’. This means you will be required to take an alcohol and drug treatment course, you will be required to obtain additional insurance coverage, and you will be ordered to install an interlock ignition device on your vehicle for at least one year following the reinstatement of your driver’s license.

Finally, you should be aware of the fact that you can still be charged with a DUI on top of the refusal. Even though the DUI refusal comes with automatic penalties, a Colorado prosecutor may still decide to pursue drunk driving charges against you in order to seek additional punishment — potentially including jail time.

Get Help From Our Colorado DUI Defense Lawyer

At Miller Leonard PC, our Denver drunk driving defense lawyer has extensive experience handling breath test refusal cases. If you or your loved one was arrested and refused to take a breathalyzer test, we can help. To request a free, fully confidential DUI consultation, please do not hesitate to contact our legal team today. With an office in Golden, CO, we represent clients in Jefferson County and throughout the Denver metropolitan area.


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