Submitting To A Chemical Analysis Following Lawful Police Contact
One question frequently asked of my office is whether or not a driver should submit to a chemical analysis of his or her blood or breath, or to refuse the test?
First, always be respectful of the law enforcement officer. He or she is just doing their job that we as citizens have requested.
It is the general advise of this office that a driver in the State of Colorado should always submit to such a test when requested by a law enforcement officer. However it is important to note the difference between the preliminary breath testing device used by some law enforcement agencies and the actual chemical analysis conducted by the law enforcement agency pursuant to the rules and regulations of the Colorado Health Department.
The preliminary breath testing device, which frequently looks like a pen, is not deemed reliable enough to be permitted into evidence in a Colorado court, and does not replace the test each Colorado driver has been deemed to have expressly consented to submit to when lawfully requested by a law enforcement officer. The preliminary breath testing device may basically be used in Colorado by the law enforcement officer as one of the voluntary road side maneuvers or tests used by the officer to determine whether or not the driver should be further requested to submit to the chemical analysis of his or her blood or breath for alcohol or drugs.
A driver in the State of Colorado who refuses to submit to a chemical analysis of his or her breath or blood for alcohol after lawful contact and request by a law enforcement officer, faces a statutory one year of no driving as a mandatory additional penalty to any other action taken against the driver's license by the Colorado Department of Motor Vehicles as a result the disposition of the court case arising from the stop.
In Colorado, if the driver either refused the chemical analysis or tested over 0.8 gms of alcohol per liter of blood, the first motor vehicle hearing is a separate civil action intended to keep the roads and highways of Colorado safe and not as a punishment to the driver; even though the driver may suffer a one year revocation of his privilege to operate a motor vehicle in the state (for a refusal or for second incident with a test over 0.8) or a 90 day revocation for a first incident of testing over the limit. Ninety days of revocation arising from the court proceeding, or, one year additional revocation! That is why this office generally recommends to its clients in Colorado to never refuse the request to submit to a chemical analysis of one's blood or breath after driving.
In addition to avoiding the one-year license revocation penalty for refusal, by submitting to the chemical analysis, the law enforcement officer is required to collect and preserve a sample from the test for re-testing by the driver or the driver's attorney. Additionally, if the sample of the driver's blood or breath was collected more than two hours after the time of the last driving, no Colorado Department of Motor Vehicle action should be taken against the driver's license (even if the test result was over 0.10) until after disposition of the court action. That is, the first motor vehicle hearing is avoided along with the civil penalty of license revocation. A refusal more than two hours after the driver's last operation of the motor vehicle would still result in Colorado with an additional year of license revocation.
A chemical test result over 0.20 in Colorado has an additional mandatory jail sentence (work release or in-home detention are possible).
Finally, always, always, always have the saved blood or breath sample retested as soon as possible by a licensed Colorado laboratory.
John C. Hugger
Attorney & Counselor at Law
3002 Evergreen Parkway, P.O. Box 877
Evergreen, CO 80437-0877
(303) 670-1043 • Fax: (303) 674-6369
Based in Evergreen, Colorado, attorney John C. Hugger serves clients in the Denver metropolitan area, the foothills, and central Colorado, including communities such as Denver, Boulder, Evergreen, Arvada, Lakewood, Littleton, Golden, Bailey, Idaho Springs, Conifer, and Pine.
Serving all Colorado counties, including: Adams County • Arapahoe County • Clear Creek County • City and County of Denver • Douglas County • Eagle County • Garfield County • Gilpin County • Jefferson County • Park County • Pitkin County • Summit County
