What is Colorado’s Express Consent Law?

Colorado’s Express Consent law provides that anyone who drives on Colorado roads automatically consents to chemical testing if they are lawfully arrested for driving under the influence. The purpose of the law is to help enforce DUI laws and determine whether a driver is impaired by alcohol or drugs.

Under the statute, if an officer has probable cause to believe a driver is impaired, the officer may require the driver to submit to a chemical test of their blood or breath. Officers must advise the driver of express consent rights after an arrest and allow the driver to choose between a breath or blood test. However, law enforcement may limit the choice in extraordinary circumstances. Additionally, if the officer suspects the driver is under the influence of drugs, a blood test is the only option available.

Colorado courts have repeatedly recognized that refusal to take a chemical test carries serious consequences. Evidence of refusal may also be admitted in a criminal trial. See People v. Simpson, 2017 CO 25.

Testing must occur within two hours of driving or being in actual physical control of the vehicle. You can find the statutory language governing express consent at C.R.S. § 42-4-1301.1.

What Does Colorado Consider a Refusal?

A refusal can occur in several different ways. The most obvious example is when a driver directly tells the officer they will not take a chemical test. However, DUI investigations are rarely that simple.

A driver may also be considered to have refused testing if they fail to select a test when requested by law enforcement. This sometimes occurs when a driver asks numerous questions or fails to clearly answer the officer’s request.

Drivers can also be considered to have refused testing if they fail to cooperate with the testing procedure. For example, a driver may:

• Fail to provide an adequate breath sample

• Refuse to sign paperwork permitting a blood draw

• Fail to follow instructions necessary to complete the test

Colorado courts examine the totality of the circumstances to determine whether a refusal occurred.

Implications of Refusing a Chemical Test

Drivers do have the ability to refuse chemical testing, but doing so comes with significant consequences.

First, prosecutors may introduce the refusal as evidence in the criminal case. The prosecution may argue that the defendant refused testing because they believed the results would show intoxication.

Evidence of refusal is admissible in a DUI trial under Colorado law. 

A refusal can also significantly impact the administrative license case handled by the Colorado Department of Revenue. The DMV controls driving privileges, and a refusal will result in the immediate revocation of a driver’s license.

Drivers may challenge the revocation through a DMV hearing. However, refusal cases are often more difficult to win than cases involving failed chemical tests. You can learn more about the administrative process in our guide to DMV hearings after a DUI arrest.

A refusal results in a one-year revocation of driving privileges. Early reinstatement may be possible after 60 days if the driver installs an ignition interlock device, obtains SR-22 insurance, and enrolls in a Level II alcohol education and therapy program.

If a driver waits the entire year without reinstating early, Colorado law will still classify the driver as a Persistent Drunk Driver, which requires installation of an ignition interlock device for two years.

Because of this designation, many drivers choose early reinstatement so that the two-year interlock requirement begins sooner.

How to Recant a Refusal Under Colorado Express Consent

Traffic stops are stressful situations. Being arrested for DUI can make the situation even more confusing and overwhelming.

During a DUI investigation, officers typically ask drivers to perform sobriety tests and then place them under arrest if they believe the driver is impaired. After the arrest, the officer invokes Colorado’s express consent law and asks the driver to submit to chemical testing.

Some drivers initially refuse testing because they are confused, frightened, or unsure what to do. In certain circumstances, a driver may quickly change their mind and attempt to recant the refusal.

Recantation means withdrawing a previous refusal and agreeing to take the chemical test. Colorado law recognizes that a driver may attempt to recant a refusal, but strict conditions apply.

Timing and Conditions for Recantation

A driver must recant their refusal within a very short time period.

The driver must notify the arresting officer — or another law enforcement officer — in time for the chemical test to be completed within the two-hour testing window required by law.

Practical limitations often affect whether recantation is possible. For example:

• Breath tests require a 20-minute observation period before testing

• Blood tests require a qualified medical professional to perform the draw

Officers are not required to wait for two hours in case a driver later changes their mind. If the officer returns to patrol duties or leaves the testing facility, the refusal will typically remain in place.

Additionally, if the driver initially selected a specific test, the recantation must be for that same test. Colorado’s express consent law does not allow drivers to change their selection.

For example, if a driver originally agreed to a breath test, they cannot later request a blood test instead.

Potential Outcomes of Recantation

Recanting a refusal does not automatically eliminate all of the consequences associated with refusing a chemical test. However, in some cases it may improve the outcome of both the criminal case and the DMV license proceeding.

The impact of recantation will depend on factors such as:

• How quickly the driver attempted to withdraw the refusal

• Whether testing could still occur within the legal time window

• Whether the officer had already resumed normal duties

Because the legal issues surrounding refusal and recantation are complex, drivers should speak with an experienced Colorado DUI defense attorney as soon as possible.

Defending Against DUI Charges in Colorado

Defending against a DUI charge requires careful examination of the evidence and police procedures used during the investigation.

Many DUI cases involve both criminal court proceedings and administrative DMV hearings. In addition to license consequences, a driver may face criminal charges such as first-time DUI or driving while ability is impaired offense.

An experienced DUI attorney will evaluate every aspect of the case to determine the best defense strategy.

Challenging the Basis for the Stop

One possible defense is challenging whether the officer had reasonable suspicion to stop the vehicle in the first place. If the stop was unlawful, evidence obtained afterward may be suppressed.

Questioning the Testing Procedure

Another defense involves examining whether chemical testing procedures were properly followed. Breath testing equipment must be properly calibrated and maintained, and blood testing procedures must comply with strict legal standards.

Errors in testing procedures can affect the reliability of the results.

Considering Plea Agreements and Alternative Sentencing

In some situations, negotiating with prosecutors may be the most effective strategy. An experienced attorney may be able to reduce the severity of the charges or negotiate alternative sentencing options.

Speak With a Colorado DUI Defense Attorney

The answer to whether a refusal can be recanted is not always straightforward. Because DUI cases involve both criminal charges and administrative license consequences, it is important to seek legal advice as soon as possible.

No two DUI cases are the same. Every case involves unique facts, and an experienced attorney can evaluate the situation and develop a defense strategy tailored to the client’s goals.

If you are charged with a DUI in Aurora or the Denver Metro Area, request a consultation today. The Lawrence Law Firm offers free consultations and represents clients throughout Colorado.

Schedule a free consultation with a Colorado DUI defense attorney today. Our firm offers flat fees and flexible payment plans so that financial concerns do not compromise your defense.