Yes, if the officer had a reasonable belief that there may be impairment due to drugs. This would be negated to some degree by the officer having you do a breath test, because that is for alcohol only. You should also find out if the officer is certified as a drug recognition expert. You need a DUI lawyer.
If you are offered a choice of a breath or a blood test, and you choose breath, that is what you get. If there is a medical problem that keeps you from completing the breath test, then you might be required to take a blood test. However, unless the use of drugs is suspected, if you choose and successfully complete a breath test for suspicion of DUI, that should be the end of the mandatory testing.
A competent DUI lawyer would have to examine the printouts and other written reports of the officers involved to determine exactly what happened. The breath test devices print a record of the results of the tests taken. Unfortunately, a complete analysis of the tests administered and the printed results can be a bit technical.
I hope that this assists with your issues.
This is a very complicated issue. There are three situations in which an officer can demand that you take a blood test when you have chosen a breath test.
1. You have been transported to a hospital and, because of the necessary treatment of your injuries/illness, they cannot get you to a breathalyzer within the required time period.
2. Due to some extraordinary circumstances, they cannot comply with your request for a breath test...i.e. the machine is malfunctioning.
3. The officer believes (based on some strict criteria) that you are under the influence of drugs in addition to alcohol.
You need to seek a consultation with an experienced DUI defense attorney who can litigate these issues on your behalf.
Many can be found here on Avvo and many offer a free initial consultation.
Best of luck.
The other attorneys in this area have answered the question competently but have left an important criteria out.. I have had several clients who believe, based on their experience in other states, that they can assert their right to an attorney or some other friend or family member to assist in their decision. This will be viewed as a refusal and will lead to a one year suspension of your right to drive in Colorado... even if it seems to fly in the face of common sense...
Furthermore -- once in a while -- an officer will permit you to "change your mind" about which test you want -- but this is not the rule -- it is the rare exception... choose one test or the other...
However, if you have a prior history of multiple DUI;s or DWAI's, the right decision, as another attorney suggested, is more complicated -- seek to educate yourself on your options when you have a history of such offenses.
Do this before you find yourself in the position of making the decision with a police officer by waiting for that decision.
H. Michael Steinberg
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