Driving under the influence is the operation of a motor vehicle while impaired. A defendant must be impaired to a degree that does not allow them to safely drive. Impairment can be a result of alcohol or drugs.

A standard DUI stop involves questions from law enforcement, standard field sobriety tests, and chemical testing. Officers request chemical testing through the Colorado Express Consent statute.

A defendant does not have to submit to chemical testing, and any suspect can refuse. A refusal can have serious implications to a criminal defense and driver's license.

Traffic stops are high pressure situations, and a defendant may initially refuse to cooperate but change their mind. In some cases, a defendant can recant their initial refusal. This could create a situation where defense is available to mitigate the consequences of a DUI or DWAI.

Understanding the law surrounding express consent and recantation is important. You might need a DUI defense attorney to assist you in the legal process. A DUI defense attorney can help guide you through the process. They can also provide legal advice and representation.

What is Colorado's Express Consent Law?

The Colorado law says you agree to DUI testing if you drive. It helps enforce DUI laws in the state. If you drive on Colorado roads, you must agree to a chemical test if an officer suspects you are intoxicated.

The test can be of your blood or breath. Officers must advise a defendant of express consent after arrest and give permit them to choose. However, law enforcement can limit it one test if there are extraordinary circumstances. If law enforcement suspects the defendant is under the influence of drugs, a blood test is the only option available.

You must complete the test within 2 hours of taking actual physical control of the vehicle. You can find the statutory language of express consent at C.R.S. 42-4-1301.1.

What does Colorado consider as a refusal?

A refusal can happen in a variety of ways. The easiest to understand is complete denial to submit to testing. However, the facts of a DUI case are rarely black and white.

If a defendant refuses to select a test, they can be considered to have refused. This might happen if the defendant asks many questions or doesn't understand the instructions given by the officer.

The defendants will also be considered as refusing to cooperate in the testing process. A defendant may not blow hard enough to get a breath sample or refuse to sign paperwork permitting a blood draw.

The rule of law examines all the facts to see if there was a refusal to take a test.

Implications of Refusing a Chemical Test

The defendant can refuse chemical testing, but it comes at a cost. Prosecutors will be permit to use the refusal as evidence in the criminal case.

The defendant may have been under the influence and didn't want the jury to know the results if they refuse. This assumption can be made by them. The defendant's refusal may indicate that they were under the influence. They may have chosen not to disclose the results to the jury.

If the police officer thinks defendants who are not under the influence and refuse are drunk, they will still be charged.

Additionally, a defendant will be subjected to harsher sanctions from the Department of Revenue. The department controls driving privileges. A refusal will result in the immediate revocation of driving privileges. A defendant can challenge the loss of their driver's license, but a refusal is harder to overcome.

A refusal will result in a loss of driving privileges for 1-year. Early reinstatement is possible after 60-days with an interlock, SR-22 insurance, and admission into a level 2 drug and alcohol class.

If a defendant does not drive for a year, they must install an interlock device. This is because Colorado law will designate them as a persistent drunk driver, even if it is a first offense.

The interlock must be in the driver's vehicle for a period of 2-yeras. Typically, it is best to go through the early reinstatement process to ensure the clock is running on the 2-year requirement.

How to Recant a Refusal of Colorado Express Consent

A traffic stop is extremely stressful. A stop for driving under the influence and subsequent arrest is even more stressful. Officers will remove defendant's from their vehicles and request them to do various sobriety tests.

After this testing, an officer will arrest the individual by placing them in handcuffs. At this point, police will invoke express consent. Defendants often refuse for various reasons, but they may also change their minds and recant their refusal.

Recantation is the act of withdrawing a refusal to take a chemical test. In Colorado, drivers have the option to change their decision about refusing a test. However, there are specific steps they must follow in order for the court to consider it. It is important for drivers to act quickly and accurately when changing their decision.

Timing and Conditions for Recantation

You must exercise the option to recant within a very short window after the initial refusal. You must tell the arresting officer or another law enforcement officer in time to finish the test within the two hour time period.

This is important because there are limitations on the ability to complete the test. A breath test requires a defendant to undergo a twenty minute observation period prior to blowing. A blood tests requires a nurse to be present.

Police do not have to wait with suspects for two hours in case the suspect may wish to recant the refusal. If the officer returns to duty, the refusal stands.

If a test was selected, a defendant can only recant to that test. Colorado Express consent does not permit a defendant to change their selection.

If a person agrees to a breath test, they cannot change their mind and ask for a blood test instead. Once they agree to the breath test, they are not allowed to change their decision. They must stick with the breath test and cannot request a blood test afterwards.

Potential Outcomes of Recantation

While recanting a refusal does not guarantee that all negative outcomes will be avoided, it can sometimes lead to more favorable results in a DUI case. It's important to consult with a DUI defense attorney to understand the possibility and implications of recanting a refusal.

Role in Recantation

A DUI defense attorney can also guide a driver through the process of recanting a refusal to submit to a chemical test. While recantation is a nuanced area of the law, with the right legal counsel, there may be a possibility to mitigate the consequences of an initial refusal.

Legal Strategies and Defense

An attorney will explore all avenues of defense, from questioning the validity of the traffic stop to ensuring that the testing equipment was functioning properly. They may also negotiate with prosecutors to reduce charges or penalties associated with a DUI arrest.

Defending Against DUI Charges in Colorado

Defending against a DUI charge in Colorado requires an understanding of the state's express consent law and the defenses available to challenge the charge.

Challenging the Basis for the Stop

One common defense is to challenge the legality of the initial traffic stop. If an officer lacked reasonable suspicion to stop the vehicle in the first place, any evidence gathered as a result may be inadmissible.

Questioning the Testing Procedure

Another defense is to scrutinize the administration and accuracy of the chemical test. Inaccuracies in testing can occur due to improper calibration of equipment, mishandling of samples, or violations of testing protocols.

Considering Plea Agreements and Alternative Sentencing

In some cases, a plea agreement or alternative sentencing may be the best course of action. An experienced DUI defense attorney can negotiate with the prosecution to potentially reduce the severity of charges or penalties.


The answer to the question is not always yes. You should still always speak with a Colorado DUI attorney if you are facing drunk driving charges. Most defense attorneys will provide a free consultation.

While a DUI may seem simple, it can get complicated quickly. No two DUI cases are the same. Each case and each defendant require a DUI attorney to tailor a defense to their case and goals.

If you are charged with a first DUI in Aurora or the Denver Metro Area, request a consultation today. If you want to hire a lawyer, we are open during regular business hours. We have weekend and afterhours available.

Schedule a free consultation with a DUI Defense attorney from the Lawrence Law Firm. We are ready, willing, and able to represent you. Our firm charges flat fees, but we also provide flexible payments plans. Your financial situation should not compromise your legal defenses.