Denver CO Lawyers
Can I Refuse a Breathalyzer Test in Colorado?

Can I Refuse a Breathalyzer Test in Colorado?

Can I Refuse a Breathalyzer Test in Colorado?

The answer to this question varies, but there are a few vital deciding factors in it all. In other words, whether or not you can, in fact, refuse to take a breathalyzer test in Colorado depends on the situation. There’s also something else to consider: Even if you can, should you refuse a breathalyzer test? What is the wisest choice to make? Let’s look further into this.



Can I refuse a breathalyzer test? The answer usually comes down to this: if you haven’t been arrested, you can refuse without penalty. After you have been arrested, you cannot legally refuse.

Refusing Field Sobriety Tests

Should You Refuse a Breathalyzer Test? In the Field, the Answer Is Usually Yes.

In Colorado, refusing a breathalyzer in the field is much different than refusing a breathalyzer at a police station after being arrested. Under CO Code § 42-4-1301 (2022), if you are 21 or older, you may refuse field sobriety testing and the field breathalyzer test without penalty. Neither the results of the tests (if you choose to take them) nor your refusal to take the tests may be used against you in court. The point of the tests is to establish probable cause to arrest you for the DUI.

It’s important to note that refusing the tests doesn’t mean the officer can’t arrest you. The officer’s observations may be enough to establish probable cause, especially if they notice any of the following:

  • Bloodshot eyes
  • The smell of alcohol on your breath
  • Slurred speech
  • An admission of drinking or being drunk.

In most cases, it’s best to refuse the field breathalyzer test. Always remain polite. Belligerence is a common indicator that someone is drunk, so if you’re excessively rude, the officer may arrest you on the spot. Test results tend to hurt most cases, not help them. The only possible advantage to agreeing is that if your BAC is well below the legal limit, the officer will likely let you go. If you’re under 21 years of age, the laws are a little different. If the police officer has a reasonable suspicion that you have consumed alcohol, they may legally require you to take a field breathalyzer test.

If you’ve been arrested for DUI, the time to secure an attorney is right now. Don’t hesitate — call the Law Office of Kevin Cahill at 720-445-9887 or fill out the online contact form.

Refusing Breathalyzer Tests After Arrest

What Are My Rights Regarding Breathalyzer Tests if I’ve Been Arrested?

On the other hand, if you have been arrested for a DUI, you no longer have the right to refuse any testing, including a breathalyzer. This is because Colorado has an “express consent” law that sees driving as a privilege, not a right, that can be taken away as soon as you are arrested for driving under the influence. Using the privilege of driving implies that you also give your implied consent, as per the Colorado definition of consent, to undergo testing following an arrest. Once you have officially been arrested, no test should be refused, and their results can be used against you in court.

If you do refuse a breathalyzer or any test after you have been arrested, the consequences are extremely severe:

  • Your license will be suspended for a year (you can apply for reinstatement after two months).
  • You’ll be required to participate in a drug and alcohol education and treatment program.
  • You must install an ignition interlock on your car for at least a year (once driving privileges are reinstated).
  • You’ll be designated a “persistent drunk driver,” even if it’s your first arrest.
  • Even if you aren’t convicted, you must carry SR-22 insurance.

Ultimately, refusing a test after arrest is not only illegal — it’s very unwise. You might not want to take the test because you’re afraid a high BAC will hurt your case. However, in almost every instance, refusing the test will only make things worse. You’ll likely suffer the consequences of a post-arrest refusal on top of the consequences of a DUI conviction. It’s not worth it!

Never Refuse Excellent Legal Representation

In Colorado, a DUI conviction can impact your finances, reputation, career, family, and relationships, even long after the conviction itself. You should always secure an experienced DUI lawyer to defend you. Even if you’re certain you’re guilty, a skilled lawyer may be able to get a better outcome than you expected.

If you’ve been charged with a DUI, our team at the Law Office of Kevin Cahill can help defend your rights. Give us a call today at 720-445-9887 for a free consultation to learn more about how we can help.

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