Expressed Consent – CDAC Member Portal

1. 1. Defendants can refuse testing despite the statute stating these drivers have already “expressed their consent” to be tested. Tarr v. People, 549 P.3d 966, 967 (Colo. 2024) (“Today, we hold that a driver can revoke statutory consent.”).
  2. Expressed Consent has both criminal implications in a defendant’s criminal case and administrative implications for that person’s driver’s license. See generally “The DUI Administrative Process”, Colorado Dept. of Rev., Division of Motor Vehicles.
  3. The statute permits defendants to choose a test, but both statute and caselaw limit that choice in some ways but not others. See § 42-4-1301.1(2)(a), (2)(b).

Chemical Test Options: Blood or Breath

An individual suspected of driving under the influence of drugs or a combination of drugs and alcohol must complete a blood test. § 42-4-1301.1(2)(b)(I). A person suspected of driving under the influence of alcohol only may demand a blood test rather than a breath test. § 42-4-1301.1(2)(a)(I). If they refuse a blood test, the test “shall” be a breath test. Id. An officer is not required to notify a driver of their statutory right to choose between these two options. Evans v. Department of Revenue, State Motor Vehicle Div., 159 P.3d 769, 771 (Colo. App. 2006). If a health or medical condition prevents a suspect from doing a breath test, then the test must be a blood test. § 42-4-1301.1(2)(a)(II).

Once a person has chosen a test, they cannot change their choice. § 42-4-1301.1(2)(a)(II). Failure to take their chosen test is deemed a “refusal” to submit to testing. Id. A person may, however, initially refuse to take a test but later change their mind, so long as the officer hadn’t yet disengaged and so long as the delay in choosing does not prevent a test from being conducted within the 2-hour window. People v. Montoya, 516 P.3d 970, 976 (Colo. App. 2022). Once a defendant has revoked their Expressed Consent and refused a chemical test, absent exigent circumstances, law enforcement must seek a warrant to test the defendant. Tarr v. People, 549 P.3d 966, 970 (Colo. 2024). Failure to obtain a warrant is an illegal search and seizure under the Fourth Amendment and will result in the suppression of any evidence obtained from the test. Id.

2-Hour Testing Window

Once an officer requests a chemical test, the suspect must cooperate to ensure the test can be done within 2 hours of the suspect’s driving. A person’s failure to cooperate is deemed a “refusal” to submit to testing. People v. Montoya, 516 P.3d 970, 976 (Colo. App. 2022).

An officer may extend the 2-hour testing window if “extraordinary circumstances” prevent the officer from testing within the 2-hour window. § 42-4-1301.1(2)(a.5)(I). When such circumstances exist, a person may change their choice of chemical test to comply with the officer’s request. § 42-4-1301.1(2)(a.5)(II).

A test obtained outside the 2-hour testing window can be used against the defendant in a criminal trial as evidence of guilt even though it cannot be used against the defendant in an administrative revocation of the person’s license by the DMV. People v. Burdette, 552 P.3d 1108, 1119 (Colo. App. 2024).

Effect of Refusal

Refusal to complete a test may result the revocation of the person’s driver’s license for a year or more. § 42-2-126(3)(c)(I). In addition, you and the jury can use a defendant’s refusal as evidence of guilt at trial:

If a person refuses to take or to complete, or to cooperate with the completing of, any test or tests as provided in section 42-4-1301.1 and such person subsequently stands trial for DUI or DWAI, the refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to admission of refusal to take or to complete, or to cooperate with the completing of, any test or tests.

§ 42-4-1301(5)(d); Cox v. People, 735 P.2d 153, 158-59 (Colo. 1987).

Documentation

Officers invoking Expressed Consent are required complete an Express Consent Affidavit and Notice of Revocation. This form documents the defendant’s choice of test or refusal to test, the defendant’s BrAC or blood alcohol content, and the legal consequences of either the refusal or the defendant’s excess alcohol content.

Unconscious or Deceased Drivers

When a driver is dead or unconscious, the statute requires law enforcement to obtain a sample of the driver’s blood unless doing so is impossible or, in the case the driver is unconscious, the draw would endanger the life or health of the driver. § 42-4-1301.1(8). Constitutionally, however, the police may draw blood from an unconscious driver without a warrant following a car accident only when they have probable cause to believe the driver has been driving under the influence and exigent circumstances, such as the combination of the dissipating BAC and the need to attend to the car accident taking priority over a warrant application. Mitchell v. Wisconsin, 588 U.S. 840, 843 (2019). When that person is taken to a hospital and the hospital draws blood, law enforcement is permitted to test any blood, urine, or saliva that was not used by the healthcare provider and obtain the results of any alcohol or drug analysis done by the healthcare provider. Id.

Resources

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DMV Appeals: The Administrative Side of DUI