You get pulled over for a Holiday DUI and the officer explains the Colorado Express consent law. Breath, Blood or Refuse what should you choose?
The answer always is to not drink and drive. However, if you are pulled over while drinking and driving, you do have 3 options each involve a different process and different consequences with both the DMV and the Criminal Court.
Most people think that the Breath test done while standing next to your car is the end-all-be-all Breath test. Surprisingly, that Breath test (Called a Preliminary Breath Test (PBT) is not admissible in a jury trial in Colorado due to its inaccuracy. After a PBT, the officers will take a person who they have probable cause to suspect of a DUI to the police station where they administer an Evidentiary Breath Test (EBT). The EBT is more accurate and is admissible in Court. Colorado is commonly using the Intoxilizer 9000. A Breath test result (BrAC) over 0.08 grams of alcohol in 100 ml (commonly known as a 0.08% DUI) will result in them taking your physical license right away. Even if your license is from out-of-state, they will take your physical license and issue you a form that allows you 6 days from the date of the EBT to request a hearing from the DMV. If you do not request a hearing within 6 days, you will lose your license on the 7th Day. The important takeaway is that something happens right away with the DMV if you elect a Breath Test.
A driver may request a Blood test (BAC) even after they have been administered a Preliminary Breath Test (PBT). If you choose to take a Blood test, you will be transported to either a hospital, ambulance, fire department, or somewhere that a certified phlebotomist is available to draw two (2) vials of your Blood. The 2 vials of blood will be sent to the lab, processed and the results will be returned to the officer. The results of your BAC will take a while (typically months in many jurisdictions to get the BAC test results back). The police will NOT take your license because they do not know if you are over 0.08 grams of alcohol in 100 ml (0.08% DUI). Although the results take much longer to come back than a Breath test, you may still be charged with a DUI. You may have wondered why I mentioned they take two (2) vials of Blood; one vial for the State test but the second vial is preserved to allow the clever defendant’s attorney to analyze independently if requested at a later time. The important takeaway is that nothing happens right away with the DMV if you elect a Blood Test.
A driver may Refuse to take all tests. This will result in them taking your physical license right away. Even if your license is from out-of-state they will take your license and issue you a form that allows you 6 days from the date of the Refusal to request a hearing from the DMV. If you do not request a hearing within 6 days, you will lose your license on the 7th Day. A Refusal will generally have more of a consequence at the DMV than if you did a Breath or Blood test. The important takeaway is that something happens right away with the DMV if you elect a Refusal.
The problem is every DUI is unique. So are the people the get charged as are their circumstances. Sometimes it is better to take an immediate test and clear this up – take a Breath Test. Sometimes it is better to delay the results and the consequences this can have with your job and the DMV – take a Blood test. Sometimes it is better to avoid the 10-day mandatory jail time on a DUI over a .020 – Refuse all tests. There is just not the perfect answer.
What is the ‘Right Decision’ for me?
The ‘right decision’ is to never drink and drive. If you do get caught it is too late to make the ‘right decision’ that makes this DUI always go away. All three choices will make you end up roughly at the same final destination; 3 different paths to journey down to that final destination.
This blog is not legal advice. You really should consult with a DUI professional to discuss your unique facts and your circumstances.
 CRS § 42-4-1301.1(1)(2)(a)(I) A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person’s Breath or Blood for the purpose of determining the alcoholic content of the person’s Blood or Breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, or UDD.