Should I blow? What to know.

Colorado has an express consent law, which essentially means that by driving on Colorado’s roads, every motorist has already provided consent for law enforcement to search his/her/their body for evidence of intoxication. However, police must first have probable cause to believe a driver is intoxicated before invoking this prior consent.

Police typically secure probable cause through observations of bad driving, odor of alcohol and/or slurred speech. Police also often use roadside testing to determine probable cause. Participation in roadside tests is voluntary, meaning (1) refusal to participate cannot be used as a factor weighing towards establishing probable cause, and (2) if an officer makes this request but does not yet have probable cause, refusal cannot later be used as evidence of guilt if DUI charges are nonetheless filed.

Even if express consent is properly invoked by an officer, a driver can still refuse to provide either a blood or breath sample for testing. But there are consequences. First, the prosecution can argue that the person’s refusal is proof of their guilt. Second, the DMV can suspend the person’s driver’s license. Reinstatement can be costly and inconvenient and the length of time and requirements for reinstatement depend on a number of different factors.