Expressed Consent Law in Colorado

Continuing our discussion about DMV procedures, a condition of a Colorado driver’s license is that a person must submit to a chemical test if there is probable cause to believe the driver is violating the DUI/DWAI statute. (Probable cause and the standards for a DUI are worthy of separate posts.)

Many people will rightfully ask, “How can this be a condition when there’s nothing on the back of my driver’s license?” The easy answer is that there is a Colorado law directly on point: the Expressed Consent Statute. The legal citation is C.R.S. 42-4-1301.1. The first section of the Expressed Consent Statute states, “Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person’s consent to the provisions of this section.” In other words, when you get behind the wheel, you have already agreed that you will provide a chemical test of your blood, breath or, in the case of drugs, saliva, blood or urine, if the police officer has probable cause to believe you are under the influence of alcohol and/or drugs.

Assuming the officer rightfully has probable cause, they will place the driver under arrest and read the following:

“You are required to take, complete or cooperate in completing an evidential chemical test to determine the alcoholic content of your blood or breath (C.R.S. 42-4-1301.1 (2) (a) (I). The chemical test you choose is the test you will be taking. You cannot choose a different test later (C.R.S. 42-4-1301.1(2) (A) (II). If you choose a blood test, two (2) tubes of blood will be drawn. One tube belongs to you and you may have it tested at a Health Department Certified Independent Laboratory of your choice. If you choose a breath test, two (2) breath samples will be analyzed by a certified evidential breath alcohol testing device following an approved standard operating procedure. You will not receive a sample to have independently tested by a certified laboratory. If you refuse to take, complete or cooperate in completing an evidential chemical test to determine the alcoholic content of your blood or breath your driving privilege may be revoked (C.R.S. 42-2-126(2)(a)(II)).”

At this point, the person has a choice: blood or breath. If the person refuses, their driver’s license will be revoked for at least a year. The underlying policy is to encourage suspects to submit to a chemical test. Once a decision is made – blood or breath – the Expressed Consent Statute explicitly states that a person cannot change their mind. Unless there are extraordinary circumstances, the test must occur within 2 hours from when the person was driving. This is often an issue when a collision is involved.

If the test occurs outside of the 2 hours and there are no extraordinary reasons for the delay, the person will likely keep their license. Nevertheless, the chemical test may still be used by the prosecution in the criminal case. There is a jury instruction that requires the jury to take into consideration how long between the driving and the test. Thus, if a person’s BAC is .005, but it was taken 5 hours after an accident, the jury will reasonably deduce that the defendant’s BAC was much higher at the time they were driving. The difference between how a test taken outside of the 2 hours is used in the DMV (administrative proceeding) versus the criminal case (legal system) highlights the independent nature of each. People are frequently confused by this fact.

How and when to request a DMV hearing will be the subject of a subsequent post.


4 thoughts on “Expressed Consent Law in Colorado”

  1. Interesting – I was not aware of this statute. I assume its constitutionality has been challenged and upheld? It would be interesting to gather some info and do a subsequent post on the merits of a blood vs. a breath test and any statistics that may be out there regarding eventual convictions using each. I’m also reading a third option under the statute which is to refuse the tests and risk license revocation. This might be the preferable option in a number of circumstances, but I’m thinking specifically where there is questionable PC. It is notable that the statute requires PC, rather than PS — the lower standard.

    1. Yes, the statute has been upheld on grounds that it’s within a state’s “police power.” The statute is also not unconstitutionally vague per Evans v. Dept. of Rev., 159 P.3d 769 (Colo. App. 2006).

      In addition, there is no constitutional right to refuse a chemical test. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971). There is, however, a statutory right to refuse. Id. Whether someone refuses boils down to how much they value their license. A number of my clients feel that losing their license is a bigger deal than having to deal with a criminal conviction. Our culture, especially in the mountains, is so car-dependent.

      I expect to follow up with an additional post on the merits of a blood vs. breath test. There are pros and cons to each. I will also explain the distinction between probable cause, reasonable suspicion and how they apply to DMV hearings soon. Bottom line: PC for a revocation isn’t a very high standard compared to the applicable law for the court in the criminal case.

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