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What is Colorado Express Consent?

If you are stopped for driving under the influence (DUI) or driving while ability impaired (DWAI) in Colorado, you are required to take a chemical test IF the officer has probable cause to believe you are impaired or under the influence of alcohol or drugs or both. Some so called “tests” you have the ability to decline without consequences, while refusing others can result in serious outcomes. Understanding your rights will help you handle any situation you face involving stops and arrests for DUI and DWAI. 

DUI and DWAI Charges

Driving with a blood alcohol content (BAC) of 0.08% or higher is a DUI in Colorado. The driver need not necessarily show signs of impairment – simply having that BAC is sufficient for the charge. Impaired drivers with BAC under this level or those under the influence of drugs can be charged with DWAI. A BAC of 0.05% – 0.08% is sufficient to support charges of DWAI.

Conviction of DUI or DWAI for first-time offenders can come with sentences starting at zero days in jail, $200 in fines, 24 hours of community service, and eight points on your license. For third-time offenders, maximums can include up to a year in the county jail, $1500 in fines, 120 hours of community service, two years of probation, and other significant penalties.

Roadside Testing for DUI and DWAI

If you are stopped for DUI or DWAI, you have no right to an attorney at that moment on the side of the road. The only thing you must do at that moment is to provide your license and registration and step out of your vehicle if directed to.

The officer may tell or ask you to take a roadside preliminary breath test. You are not required to submit to this test. You are also not required to agree to a roadside maneuver test or a standard field sobriety test (these include one leg stands (OLS), walk and turn (WAT), and horizontal gaze nystagmus (HGN) tests). You do not have to answer questions about whether or how much you have been drinking.

However, you can be arrested whether or not you agree to take blow in a portable or preliminary breath device or perform any of the SFTSs on the side of the road. An arrest can happen any time an officer decides there is enough evidence to support charges of DUI or DWAI.

The decision whether or not to take a roadside breath test is up to you in that moment. If you do take a roadside test and the results are negative, you will likely be released and not arrested. However, a positive test may result in an arrest.

BAC Testing After Arrest- Required

After you have been arrested, you will be advised of Colorado Express Consent and informed that by driving on the streets and highways of Colorado, you have already consented (under Colorado Law) to take a blood or breath test for BAC. You will have the option to choose one type of test. Blood tests are more accurate, and your attorney can have the sample independently tested later as well. Breath tests are less invasive, but not as accurate.

Colorado’s Express Consent Law (C.R.S. §42-4-1301.1) requires anyone who drives on Colorado roadways to submit to this testing upon arrest for DUI/DWAI and within two hours of driving or face serious penalties. By driving on Colorado roads, you are giving consent for this testing. If you refuse to consent to the testing, your license may be revoked as follows:

  • First offense: 12-month revocation
  • Second offense: 24-month revocation
  • Third offense: 36-month revocation

You have the opportunity to apply for a provisional reinstatement, but there is no guarantee you will receive it.

If you refuse to provide a chemical sample after arrest, there are additional consequences to be aware of in addition to the license revocation:

  • Interlock Ignition Device: You will be required to have an interlock ignition device for two years after your license is reinstated.
  • Alcohol Program: To get your license reinstated, you have to enroll in a level II alcohol education program that includes 24 hours over 12 weeks in a group setting.
  • Insurance Rider: You may be required to obtain an insurance policy rider (SR-22) that guarantees your insurance will be kept in effect for a specific period of time.
  • Designation as Persistent Drunk Driver (PDD): This goes on your record.

Note that all of this is in addition to any penalty you face if you are convicted of the DUI or DWAI charge itself.

Should You Refuse Testing?

The decision whether or not to agree to chemical testing is something that you must decide in the situation. In some situations, the penalty for refusal could be less than the penalty for a guilty verdict, particularly if your record has prior DUI convictions, but in other situations, a refusal will simply add to your penalties.

Defenses to a Chemical Test Refusal

If you refuse a test after arrest, you still have possible defenses available. These include:

  • You were not driving
  • There was no probable cause
  • You were not advised of all of your rights
  • Your refusal was out of your control (for example, you fainted due to a heart condition – the reason has to be unrelated to drug or alcohol use however)

A skilled criminal law attorney can help you get the best possible outcome in your case, whether you took or refused a chemical BAC test. Burnham Law attorneys are available to take your case and work to get your license back as quickly as possible. Contact us now at 303-578-3314 or reach us online.


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Associate Attorney - Domestic Relations, Criminal Defense, and Probate


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