To blow or not to blow, that is the most often asked question.
In fact the question often asked is to what extent you should cooperate with law enforcement at all. Should you take field sobriety tests? Portable breath tests? A breathalyzer at the station? Or should you refuse it all?
The first thing an experienced DUI defense lawyer in Fort Collins or Brighton will tell you is that, from the moment of the traffic stop, law enforcement is only interested in gathering evidence of your guilt.
None of these tests are designed to see if you should be released without charges at the scene!
In fact, Colorado is one of just a handful of states that have a lesser charge of Driving While Ability Impaired. This is meant to charge those responsible drivers who are not guilty of DUI but who test between .05 and .08. Frequently, this means adults with little or no experience with law enforcement, and not criminal record, who responsibly consumed a glass or two of wine or beer at dinner with friends, are still arrested and charged even if they test below the nationwide limit of .08.
While we will look at each form of sobriety testing, it’s important to note that you should say as little as possible and remain cooperative and polite to law enforcement throughout the stop, and your probable arrest. In many cases, police body camera or cruiser dash camera footage can be helpful to a defendant’s case, particularly if they remain polite and professional throughout a stop.
The truth is that there are scenarios where participating in field-sobriety testing or BAC tests may either help or hurt you, depending on the particular facts and circumstances of your case. But remaining polite and professional throughout a stop is always a winning strategy.
The roadside olympics.
There are only three types of standardized field-sobriety tests in Colorado:
Despite knowing this, law enforcement is likely to put suspects through all manner of testing designed to make a defendant look silly, and guilty. Many people cannot pass these tests sober, particularly in the dark on a strange and often uneven road surface. Most experienced Colorado drunk driving defense lawyers suggest that you politely refuse to participate in such tests, as they are not required by law.
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Officers may also request that you take a preliminary breath test or a roadside portable breathalyzer examination. If you are over the legal drinking age of 21, you are not required to take a portable breath test and most drunk driving defense lawyers advise clients to politely decline to do so. There are no penalties for doing so and these results cannot be used against you in court. Given that Colorado’s Driving While Ability Impaired (DWAI) law can result in an arrest even if you test above .05 but below the legal driving limit of .08, it is typically not in a motorist’s best interest to submit to a portable breath test at the scene unless he or she has not consumed alcohol.
While refusing will likely lead to arrest, you will be arrested anyway if you test over .05.
Under Colorado’s express consent law, you are required to take a post-arrest chemical test if you are suspected of DUI, DUI per se (driving over .08 BAC), DWAI or underage drunk driving (UDD).
Failure to submit to the testing will result in an automatic one-year suspension of your driver’s license and being designated as a persistent drunk driver, which can carry enhanced penalties. You can apply for reinstatement of driving rights after two months, but will be required to undergo mandatory alcohol or drug education, have an ignition interlock device installed on your vehicle for at least one year, and must carry SR-22 insurance even if you are found not guilty of the DUI.
Additionally, your refusal to submit to a post-arrest breath or blood test can be used against you as evidence should your case go to trial.
The legal penalties for refusal complicate the question of whether you should submit to the testing, which largely depends on the facts and circumstances of your particular case. One advantage of refusing is that there will be no evidence you are presumed guilty (DUI per se) if you test over .08 BAC. Additionally, if you are highly intoxicated, and refuse to test, there will be no evidence to trigger enhanced penalties that come with a persistent DUI designation for those who test above .15 BAC.
However, you will face enhanced penalties that are more serious than those for a first-offense DUI and will eliminate the possibility of being charged with the lesser offense of DWAI should you test between .05 and .08. Additionally, if you do submit and test at .08 or above, those results can be challenged by an experienced drunk driving defense attorney. A post-arrest refusal can only be challenged by challenging the arrest itself. Our Fort Collins DUI Defense Attorney represents clients in Brighton and throughout Adams and Weld counties, as well as Larimer County and the Fort Collins area, including Loveland, Berthound, Estes Park, Johnstown, Timnath, Wellington and Windsor.
Call 970-592-2805 for a free and confidential consultation to discuss your rights.
