Colorado’s Express Consent Law requires individuals arrested for DUI-related offenses to submit to a chemical test. DUI charges can pose serious legal consequences, so understanding the nuances of express consent is crucial for anyone facing such allegations. In this post, we’ll explore what constitutes a DUI in the state of Colorado, then dive into the application of Colorado’s Express Consent Law to DUI cases.
What Constitutes a DUI in Colorado?
If you are operating a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or higher, this is considered driving under the influence in the state of Colorado. Note that individuals can be charged with DUI if they exhibit impaired driving due to alcohol, drugs, or a combination of both, regardless of their BAC level.
If you have been arrested for DUI in Colorado, we urge you to seek the help of a DUI attorney immediately. When it comes to the success of your case, time is of the essence.
Misdemeanor vs. Felony DUIs: What’s the Difference
Many of our clients ask us: is a DUI a felony? The answer is: it depends. Most DUIs in the state of Colorado are considered misdemeanors; however, felony charges can be imposed in the following scenarios:
- You have 3 or more prior DUI convictions.
- You caused an accident in which an individual was severely injured.
- You caused a fatal accident.
DUI charges, whether misdemeanor or felony, can have a serious impact on your future. If you are facing charges of this nature, reach out to a DUI lawyer for support as soon as possible.
How Long Does a DUI Stay on Your Record?
In Colorado, DUI convictions remain on your criminal record indefinitely; in other words, they cannot be sealed or expunged. This is why it is crucial to avoid conviction at all costs, as a DUI record can impact your employment prospects, housing eligibility, and professional licensing for the rest of your life.
What Is the Colorado Express Consent Law?
So, what is expressed consent anyway? Colorado’s Express Consent Law mandates that individuals lawfully arrested for the following must consent to chemical testing:
- DUI (driving under the influence of alcohol, drugs, or both)
- DUI per se (based solely on BAC rather than impairment)
- DWAI (driving while ability impaired)
- UDD (underage drinking and driving)
In other words, by operating a motor vehicle on public roads, Colorado drivers imply their consent to testing if suspected of DUI. Refusal to comply with chemical testing can result in automatic driver’s license suspension and other penalties.
Breath vs. Blood Test: When Can I Choose?
If you are arrested under the suspicion of drunk driving, you have the right to choose between a blood test or a breath test to determine your BAC. However, if law enforcement suspects the use of drugs, then a blood test is required, since breath tests cannot detect the presence of controlled substances in your system.
How do you choose between the two? While breath tests are the less invasive of the two options, blood tests have several pros. Not only are they more accurate, but they can also be submitted for independent testing by your attorney. In addition, you can keep your license until the blood test results come back.
Post-Test Procedures: What Happens Afterwards?
If your breath test comes back with a BAC above 0.08%, law enforcement will confiscate your license right away. They will also issue an express consent affidavit and notice of revocation, which serves as a seven-day driving permit. After the seven days are up, your driving privileges will be suspended.
If you opt for the blood test, you will be allowed to keep your license until the results come back. If they come back outside of legal limits, the DMV will mail you the above documentation.
Note that if you request a DMV hearing, also called an express consent hearing, within the seven-day permit period, you can retain your license until the DMV hearing officer makes a decision, which can take weeks or even months to occur.
License revocation duration in Colorado varies depending on previous convictions. If it is your first DUI offense, you can expect a revocation period of nine months. This timeline extends to one year for second DUI offenses and two years for third DUI offenses. In some cases, you can keep your license and resume driving right away if you use an ignition interlock device in your car.
Refusing a Test: What Are the Consequences?
Refusal to submit to chemical testing under the Express Consent Law triggers immediate penalties. These consequences include:
- Automatic driver’s license suspension.
- First DUI – one year revocation
- Second DUI – two year revocation
- Third DUI – three year revocation
- Provision of an express consent affidavit and notice of revocation.
- Application for a forced blood draw warrant.
- Requirement to carry SR-22 insurance for one year, showing that you meet the state’s minimum auto liability requirements.
- Completion of a drug or alcohol treatment program.
- Designation as a persistent drunk driver (PDD), even if it is your first DUI offense.
In addition, if your case does go to trial, your refusal to submit to a test can be used as evidence of your guilt.
Are Roadside Tests Included in the Expressed Consent Law?
During DUI stops, law enforcement officers often administer roadside sobriety tests, including field sobriety tests and preliminary breath tests (PBTs). A PBT is conducted using a handheld device and is NOT the same as the evidentiary breath test conducted during the arrest process.
Law enforcement uses PBTs to establish probable cause for arrest. Note that if you are 21 or older, and a police officer asks you to take this roadside test, you can legally decline. This is not the case if you are underage.
Common Defenses for Expressed Consent Violation Cases
In DUI cases involving express consent violations, several defense strategies may be employed to challenge the charges. Some of the most common include the following:
- Someone else was driving the vehicle.
- There was no probable cause to pull you over in the first place.
- There was no reason to suspect that you were under the influence.
- The chemical tests were administered improperly.
- You suffered from a medical condition that caused impairment.
Collaborating with a seasoned DUI attorney is essential for crafting effective defense strategies tailored to the specifics of each case.
Navigating Colorado’s Express Consent Law and the complexities of DUI charges requires expert legal guidance and representation. By understanding the nuances of the law, individuals facing DUI allegations can protect their rights, explore defense options, and work towards a favorable outcome in their case. If you are seeking a DUI lawyer near you to assist with your DUI or express consent violation case, the MBS Law team is ready and able to help. We can help you navigate the legal process with confidence and pursue the best possible resolution for your unique situation. Contact us today to get started.
