have been charged with a fourth DUI or more, you will be charged with a felony and face a minimum 2 years in jail.

 

When choosing an attorney for a DUI case, make sure the attorney is competent with express consent.  What is express consent? Many people don’t understand that when they got their driver’s license or simply drove on the roads of Colorado, they consented to a chemical test of their blood or breath if a police officer has probable cause to believe they are impaired by alcohol or drugs.  See C.R.S. § 42-4-1301.1(2)(a)(I).  What does all that mean?  If you are pulled over by the police and the police can articulate why they believe you are drunk or high, you must submit to a test of your blood or breath.  In fact, if the police officer believes you are impaired by drugs, you can be required to take a test of just your blood. 

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Can I refuse? Yes, you have the option of refusing.  However, refusing comes with consequences.  First, you will lose your license immediately.  See C.R.S. § 42-2-126(3(c)(I).  If it’s your first refusal, you will lose your license for one year.  If it’s your second, two years.  If it’s your third or more, three years.  Second, you will still be charged with DUI and the district attorney can use your refusal against you, meaning they can say you refused because you had been drinking. 

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Another thing you should keep in mind is the difference between refusing to do a chemical test of your blood or breath and refusing standard field sobriety tests (SFST’s).  SFST’s are tests police officers conduct to determine if you are drunk or high.  These include walk the line, follow the finger/pen/light, one legged stand, even the handheld preliminary breath test police use to test your breath at the scene is included here.  A refusal to these tests is not a refusal to take a chemical test.  If you refuse to do SFST’s, the district attorney cannot use that against you.  These tests are usually used to build evidence that you are driving drunk, especially when the driver later refuses to do a chemical test of their blood or breath.  Another thing to keep in mind when considering whether to take SFST’s, the tests are hard, even for sober people.  Who remembers, similar to walking a straight line, walking the balance beam in high school gym class.  Not everyone could do it and you could even raise your arms.  In some cases, drivers who fail SFST’s pass a chemical test of their blood.

 

Finally, you should know there are some rules to express consent and chemical testing.  First, the police officer must conduct a test of your blood or breath within two hours of you stopping driving.   See C.R.S. § 42-4-1301.1(2)(a)(III).  However, if you interfere so that the test can’t be completed within two hours, you will likely be deemed a refusal.  Second, the police must advise you of the express consent statute and give you the choice between a blood test, breath test, or refusal.  See People v. Null, 233 P.3d 670, 678 (Colo. 2010); Turbyne v. People, 151 P.3d 563, 568 (Colo. 2007).  This essentially goes like “by driving on the streets of Colorado you expressly consent to a chemical test of your breath or blood or you can refuse.  Which one do you choose?”  If a police officer failed to read some variation of this to you and didn’t have a really good reason, your case could result in a dismissal.  Third, once you choose to submit to a blood or breath test, the police officer must give you the test of your choice absent extraordinary circumstances.  See Null, 233 P.3d at 673.  If the police officer arbitrarily forces you to submit to a chemical test other than your choice, your case may result in dismissal or suppression of the results or refusal of a chemical test.

 

Call the Law Office of Michael Swink today and speak with an attorney experienced and knowledgeable with DUI laws and express consent.