What is Express Consent?

Blood and Breath Testing in DUI Cases: Colorado Driver's License Legal Obligations

Colorado has a law called 'express consent', which means when you are given the privilege to drive a motor vehicle (via a valid driver's license) you thereby agree to submit to chemical testing of your blood or breath by a law enforcement agency having probable cause to suspect your use of alcohol, drugs, or a combination of the two.See our B.A.C. page.

If you refuse a breath or blood test (and they are voluntary), then you lose your driver's license for one (1) year. This is called a 'refusal'.

Important considerations have to be made when facing a DUI related case. While losing a driver's license is certainly a huge problem, having a breath or blood test admitted as evidence against you in a criminal trial - where the penalties involve jail - is severe as well. Most DUI attorneys would prefer going to trial without a blood or breath test in evidence.

Definition: Any person who drives any motor vehicle upon the streets and highways throughout this state shall be deemed to have expressed such person's consent 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.

If a person elects either a blood test or a breath test, the person shall not be permitted to change the election, and, if the person fails to take and complete, and to cooperate in the completing of, the test elected, the failure shall be deemed to be a refusal to submit to testing. If the person is unable to take, or to complete, or to cooperate in the completing of a breath test because of injuries, illness, disease, physical infirmity, or physical incapacity, or if the person is receiving medical treatment at a location at which a breath testing instrument certified by the department of public health and environment is not available, the test shall be of the person's blood.

The person must cooperate with the request such that the sample of blood or breath can be obtained within two hours of the person's driving. If a law enforcement officer who requests a person to take a breath or blood test determines there are extraordinary circumstances that prevent the completion of the test elected by the person within the two-hour time period, the officer shall inform the person of the extraordinary circumstances and request and direct the person to take and complete the other test. The person shall then be required to take and complete, and to cooperate in the completing of, the other test.

A person who initially requests and elects to take a blood or breath test, but who is requested and directed by the law enforcement officer to take the other test because of the extraordinary circumstances may change his or her election for the purpose of complying with the officer's request. The change in the election of which test to take shall not be deemed to be a refusal to submit to testing. If the person fails to take and complete, and to cooperate in the completing of, the other test requested by the law enforcement officer, the failure shall be deemed to be a refusal to submit to testing.

"Extraordinary circumstances" means circumstances beyond the control of, and not created by, the law enforcement officer who requests and directs a person to take a blood or breath test or the law enforcement authority with whom the officer is employed. "Extraordinary circumstances" includes, but shall not be limited to, weather-related delays, high call volume affecting medical personnel, power outages, malfunctioning breath test equipment, and other circumstances that preclude the timely collection and testing of a blood or breath sample by a qualified person in accordance with law. "Extraordinary circumstances" does not include inconvenience, a busy workload on the part of the law enforcement officer or law enforcement authority, minor delay that does not compromise the two-hour test period, or routine circumstances that are subject to the control of the law enforcement officer or law enforcement authority.

Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to submit to and to complete, and to cooperate in the completing of, a test or tests of such person's blood, saliva, and urine for the purpose of determining the drug content within the person's system 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 or DWAI and when it is reasonable to require such testing of blood, saliva, and urine to determine whether such person was under the influence of, or impaired by, one or more drugs, or one or more controlled substances, or a combination of both alcohol and one or more drugs, or a combination of both alcohol and one or more controlled substances.

If a law enforcement officer requests a test, the person must cooperate with the request such that the sample of blood, saliva, or urine can be obtained within two hours of the person's driving.

The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person had been driving a motor vehicle in violation of section 42-4-1301 and in accordance with rules and regulations prescribed by the department of public health and environment concerning the health of the person being tested and the accuracy of such testing.

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