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If I refuse a chemical test, can I change my mind? DUI

Denver, CO |

I refused a chemical test on the side of the road and in the back of the police cruiser without talking to a lawyer. I was taken to jail. Before I was booked I told the officer that I consented to a breath test. He told me that he had already given me enough chances and that he would not allow it. Then he asked me to sign some express consent form and I refused to sign it without a lawyer because the refusal box was already checked. I am just wondering if there will be a chance for me to bring this up at my DMV hearing and maybe save my license. I learned from a previous post on this site to apply for a hearing so that's what I did. My report even says I consented at the station but the officer had already given me enough chances. Any help would be greatly appreciated!

Attorney Answers 4

Posted

The answer is maybe. You are allowed to recant a refusal, but the recantation must be made within a reasonable amount of time and while the officer is still processing your arrest and paperwork. As Mr. Lubchenco and Mr. LeRoi have stated, you need an attorney as the exact timeline and order of facts will be the deteriming factor on whether the officer denied you the right to exculpatory evidence or whether you actually refused. A lot will depend on the officer's report and his oral testimony.

Remember that on a refusal case, you only have 7 days from the date of arrest to go to the CO DMV and request a hearing, so make sure you have done this so that your preserve your right to a hearing to fight the pending 1 year revocation of your driving privileges.

Hire the best DUI defense attorney you can afford!

The Orr Law Firm, L.L.C - 303-818-2448 - Is Colorado's Premier DUI and Criminal Traffic Defense Law Firm. Rhidian Orr is the senior partner and owner of the firm and focuses his practice exclusively to DUI and criminal traffic matters in the state of Colorado. His decision to answer your questions does not constitute an attorney/client relationship. The Orr Law Firm offers FREE Consultations and we encourage that you contact his firm to discuss your case in more detail.

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4 comments

Christopher Daniel Leroi

Christopher Daniel Leroi

Posted

Mr. Orr would be an excellent choice.

Asker

Posted

So I recanted the refusal within an hour or so. I was arrested at 1 am and I recanted my refusal at the station while he was still there before being booked. Is that a reasonable time?

Rhidian David Watson Orr

Rhidian David Watson Orr

Posted

What you and I think a reasonable time is, may not be what the Judge thinks. So the answer is maybe. I know it isn't the answer you want, but it is thr truth. There is not a definitive period of time that makes it reasonable. The totality of the circumstances and what the officer says the timeframe was and where he was at in the arrest process will be critical. There are so many variables in play in these cases that one circumstance or fact can change the outcome of the case. I'd be more than happy to do a consultation with you over the phone, so please call me office if you would like to speak in more detail. I also recommend Mr. Leroi and Mr. Lubchenco as they are both great attorneys and you would be well served speaking with them as well.

Christopher Daniel Leroi

Christopher Daniel Leroi

Posted

I agree with Mr. Orr.

Posted

The best advice I can give is to talk to a DUI attorney. So many issues can arise in these types of cases and they are so fact specific. It is great that you requested a hearing. They are an essential component to defending your case.
You are in a tough spot for your hearing with DMV but that fact is very helpful for trial. It is important to consider trial and fully explore all of your options and defenses.
Any suspension you get as a result of a plea or conviction will be consecutive to your revocation for the refusal.
There are quite a few good DUI attorneys on avvo. Give one or more of us a call and find one you like and can afford.
Good luck.

Lubchenco, Kendrick, & Baldridge, L.L.P. 720-644-6413. The information provided here does not create an attorney-client relationship. If you are interested in a free consultation, please contact us at 720-644-6413.

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Posted

If there was enough time, the officer should have tested you.

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Posted

Mr. Lubchenco is absolutely correct and I would start off by speaking with him for an initial consultation. Normally, after you refuse a chemical test of your blood or breath (not the roadside PBT test) or after you chose one (breath or blood), you can not change your mind. However, you need to have an attorney look into this as it is extremely fact-specific.

The information provided in this answer does not create an attorney-client relationship. If you are interested in his legal services, feel free to call Chris at (303) 409-7635 at his law office in the Denver Tech Center. All initial consultations are free of charge.

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