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Refusing a Breathalyzer: Good or Bad Idea? It Depends

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An officer may ask you to submit to a Blood Alcohol Content (BAC) test in different situations. It is important to understand the differences between the blood test and the breath test and to know when you should or should not submit to a test. 

After You Are Pulled Over 

Colorado law allows an officer to request a preliminary breath test (PBT) if they reasonably suspect you are driving while under the influence of, or while impaired by, alcohol or drugs. This is a hand-held test that is done in the field before you are arrested. 

Officers should advise you that you may or may not comply. However, you are not required to take this hand-held PBT. If you take the test, the officer can use the result to decide if there is probable cause to believe you were driving under the influence. These test results cannot be used in court except in a hearing outside of the presence of a jury. Further, the prosecutor will not be allowed to tell a jury that you refused this PBT test. 

You should never take the hand-held breath test in the field. By refusing this PBT you are adding another hoop the officer needs to jump through to arrest you. They may not think it is worth it. Denver area police will not arrest you and then take you to the police station unless they are convinced you are at least over the 0.05% blood alcohol content (BAC) needed for a driving while ability impaired (DWAI) charge. 

After Your Arrest

If the officer thinks they have probable cause for an arrest, they will give you the choice of taking either a blood or breath test. If you choose to do a breath test, the device should be a certified evidential breath test instrument operated by someone certified to do so, using a standard operating procedure, done at the police station. Should you choose a blood test, the officer will produce a medically qualified person to draw two vials of your blood. The point is to determine your BAC and what charges, if any, you may face, including DWAI (BAC of 0.05% to 0.079%) or driving under the influence (BAC of 0.08% or more)

We recommend that you consent to take a blood alcohol test after arrest. If you refuse, your refusal can be used against you in court. Although the tests are voluntary, when you get a Colorado driver’s license, you agree to submit to a test. So, a refusal will lead to an automatic revocation of your driver’s license for one year. You may be eligible for early reinstatement. 

In extreme cases, for example when there is suspicion of vehicular homicide, the state’s Court of Appeals ruled this year that drivers can be forced to take a blood test to determine their blood alcohol level. In 2017, Colorado’s Supreme Court also ruled a blood draw from an unconscious driver could be used as evidence if there’s probable cause to justify the test.  

There is debate about whether it is best to take a breath test, blood test, or refuse the test. The truth is, it depends on the situation. Jury trials can be won in some circumstances when the client refused the test. And, it may be wise to refuse the test when you are confident that you are way over the limit. However, when you agree to take the test, the officer then has to succeed at getting you to a machine, or a syringe, before two hours passes. This often leads to an “unforced error” where the officers drop the ball. You lose the chance for something to go wrong with the case against you if you simply refuse the test. In some ways, you make it easier for the prosecution when you refuse. I recommend taking a breath test unless you are certain to be way over the limit. 

A Denver DUI Lawyer Can Assist You 

If you have been charged with DUI or DWAI or refused a breath or a blood test, contact us. We have handled these cases for over 22 years and are always here to assist. Kevin Churchill of Churchill Criminal Defense genuinely cares about the outcome of your case. Find out more about Denver BAC tests today by calling us at (303) 832-9000, or using our easy online contact form to schedule a free consultation.