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Breathalizer didn't work & was told to do blood test - scared of needles & insisted on breathalizer - now saying I refused test?

Denver, CO |

After being approached by an officer while sitting in my parked vehicle (engine was running) and asked to conduct a field sobriety test, I attempted the tests but it was cold outside and I stopped and asked for a breathalizer. The officer said it was disabled and wasn't working properly and that he could take me to the station to do the test, so I agreed. When we got to the station, he said the test there was also not working and I'd have to do a blood test. I don't like needles and said I preferred to do a breathalizer. The officer said the nearest one was a 20 minute drive from there and he only had 30 minutes remaining before the 2 hour limit was up for him to conduct the test and that I would need to do a blood test. I told him I preferred a breathalizer and now he stated I refused.

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Attorney answers 3


You don't get to choose the test.

V. Iyer

V. Iyer


This is not IL. In Colorado the driver, defendant, gets to choose the test or to refuse. He or she can recant a refusal under certain circumstances. Only in cases of emergency not created by law enforcement can the officer decline comply with the driver's choice of test and require driver to do another test not chosen by driver. General rule in Colorado driver chooses the type of test or to refuse to take the test. In certain circumstances the officer may claim the driver refused based on driver's actions or inactions or behavior or actual statements to indicate a refusal.

Anne Whalen Gill

Anne Whalen Gill


This sound advice. It's techncial, and Colorado is different from other states. You need a DUI laywer is on top of the most recent case law on refusal/choice of tests.


There are multiple issues here that need to be explored dealing with the status of this breathalyzer and how close others were to the police station, when did the officer know that it was down, etc. Calling you a "refusal" makes things so much easier on the police but they likely denied your rights.

Please consider calling a qualified DUI defense attorney to discuss this further. Many will offer a free consultation, myself included. You only have 7 days from the date of the alleged offense to protect all of your rights.

Best of luck to you.

John Buckley

No answer here should be considered to form an attorney-client relationship. You should consult with a licensed attorney in your jurisdiction so that a full evaluation of the facts of your case can be conducted.


This issue is more complicated than many think. Especially those who don't practice in CO and are unfamiliar with CO law. You should only listen to the advice and responses from a licensed CO attorney and more specifically, a licensed CO attorney who focuses on DUI Defense.

There are too many issues with the above facts and scenario to address on a site like this. I strongly recommend you consult with one or several DUI attorneys in the Denver Metro Area so that you can make an educated and informed decision on ho to handle this case. Again, you only have 7 calendar days to request a hearing at the DMV on a refusal case. Do not forego your right to this hearing. Take advantage of Free Consultations so that you can be assured that you don't miss any deadlines and preserve your rights. I would recommend calling Mr. Buckley or you can call my office for a consultation. There are several qualified DUI Defense attorneys on AVVO that you can contact for consultations.

My decision to answer your question does not construe an attorney client relationship. My opinion is based on the facts you have provided. Before making any decisions, you should always consult directly with an experience attorney, either in person or via phone.

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