Before venturing into the different parts of refusing a chemical test of your blood/breath in Colorado, let me distinguish between the “PBT” (preliminary breath test) and the “official” chemical testing of your blood or breath.
The Preliminary Breath Test Is Voluntary
Out in the field before your arrest, you can refuse the preliminary breath test because it is voluntary. There are no consequences for refusing other than the officer possibly testifying against you in court that you refused it.
Should you refuse the PBT? Absolutely, so long as you have had anything to drink before being stopped. These tests are imprecise by their nature, and if the device has been dropped, or miscalibrated, well, then the results can be used to justify an illegal arrest. Anything you have consumed might be picked up and magnified, so do not take the test.
Taking the Real Test: Blood or Breath?
Let’s look at these choices.
The Blood Test
This is the chemical test of your blood/breath that takes place down at the police station. At this point, you are under arrest, and you will be advised that you can take a blood or breath test. Which should you take? Do not take a blood test. Straight up: Blood tests are pretty damn accurate. If you are full of bravado (and maybe a few cocktails) you might think that the blood test is the way to go. Wrong.
It is difficult for a lawyer to attack the results of a blood test by using a challenge to the procedure because:
1. Blood drawing is simple
2. It is performed by an independently employed phlebotimist or paramedic, not an officer (unlike the breath test).
The Breath Test
On the other hand, breath tests can be affected by breathing, burping, and the sheer number of people who use the machines. Most people opt for the breath test, and they’re right.
You are better off taking this test rather than the blood test. Why? Breath machines have to be calibrated with solutions, and the tester/operator needs to be certified. The officers themselves operate breath machines, and one certifying officer certifies “the operating” officer’s operation of the machine. This always sounds pretty unfair, and a juror might agree. There are loops in the breath testing process to make loopholes from, and defense lawyers like loopholes. Also, there is a lot of paperwork associated with the breath machine, and if any of it gets lost, then a good DUI lawyer can harpoon the prosecutor’s case.
Should You Refuse the Chemical Test?
Let me respond with a question: Do you want to take the bus for the next year? How good are your walking shoes? What is the number for Yellow Cab? You can guess that my answer is no; therefore, do not refuse the breath test if you don’t like the bus, you don’t like to walk everywhere, and you never pay attention to the number painted on the cab that drives by you. Why? Refusing a chemical test of your blood or breath will result in a one-year suspension of your driver’s license. If you were to drive during this time, and you were to get caught, then your suspension is extended by one year and you will go to jail for a minimum of 30 days.
Another Consequence of Refusing a Chemical Test
Here is another consequence of refusing the chemical test: Should your case go to trial, the fact that you refused the “real” test will be admitted into evidence against you. This is what I like to call “the defendant had something to hide” evidence, and it is pretty damning.
Also, keep in mind that you will only be suspended for nine months if you were driving with too much alcohol in your system (.08-.169) whereas a first-time refusal gets you one year. Ninety days of walking in the hot afternoon sun will make a differrence.
Let’s Review This Again
Let’s summarize the best steps to take should you be stopped for drunk driving:
1. Refuse the preliminary breath test in the field (being the location where you were stopped).
2. At the police station (or other law enforcement operations center), take the breath test. Do not refuse to do this!
3. After the officer or other administrator completes your paperwork and hands you over to the jail staff (or detox staff), call a qualifed Colorado criminal defense lawyer.
Colorado DUI lawyer Shaun Kaufman offers defense to the criminal DUI charge, as well as to the DMV hearing that accompanies it. Shaun has successfully defended DUI cases at jury trial, and he won a DMV hearing just a few months ago in Lakewood, Colorado. He has the technical knowledge and the experience that you should look for in a Denver DUI criminal defense lawyer.
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