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What is the criminal punishment for refusing a breath test in Colorado. Is there any benefit to refusing?

Denver, CO |

I have already requested a hearing from the DMV. I received a DUI and refused to take a chemical test. Therefore no BAC amount will ever be known or what drugs (prescription) quantities that were in my system. My friend got a DUI two nights later and blew close to a 0.32. I started asking myself a lot of questions after this. Is it better or worse to have a refusal rather than an extremely high BAC in regards to both the D.A. and the sentencing judge? I plan on fighting mine (refusal) but I think my buddies (high) BAC might be a bit more difficult to fight.

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Attorney answers 3


There is no criminal punishment for refusing to take a chemical test of your breath or blood for a DUI. The DMV takes away your driver's license for one year for refusing to take a chemical test. That is an ADMINISTRATIVE punishment and not a criminal punishment. The refusal does make it harder for the DA to prove you guilty. In fact, as a former judge for 7 years and a former prosecutor of 7 years, I can not tell you how many jurors indicate in jury selection that they will not convict someone of DUI without a chemical tests. You need to get an attorney. So, does your friend. With a BAC over .2, the judge is required to sentence him to 90 days of jail and can only suspend 80 of the 90 days if he does an alcohol program. So, he is much worse trouble than you currently are and he will need to spend time in jail. You both need good criminal defense attorneys. Neither of you can afford to do this on your own.

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.

Michael D. Evans

Michael D. Evans


You should use a lawyer at the DMV hearing - not necessarily for purposes of winning the hearing, but for purposes of deposing the police officer before trial and obtaining a transcript.


Because other defendants may read this I want to caution you and them that there is no sigle best answer to the question of whether it is better to refuse a test or not. Usually a refusal will hurt your outcome if you lose the DMV administrative case in Colorado. A refusal may hurt or help in the criminal case but there would be several things that would factor into the answer, including what your BAC would have been. A refusal could be worse on a first-time DUI in the criminal case if you get convicted of the 12-point DUI or the points in your case add up to 12 or more after conviction of plea. BAC alone does not determione the outcome in a case. I agree that you both should contact a defense attorney who dedicates all of a significant portion of his or her paractice to DUI cases.


Mr. Leroi and Mr. Pirosko are both correct.

I will only add that in the case of a "refusal," the prosecution may ask for a jury instruction that suggests to the jury that your lack of cooperation with a chemical test infers that you would have failed the test had you taken it. The argument is "only a guilty person would avoid the test. If they were truly sober, wouldn't they want to prove their innocence."

As the others have suggested, you need to consult with a qualified DUI defense attorney to explore all of your options.

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.



Thank you for your comment. The reason I refused the testing was because I performed the roadsides and was told I failed. I asked him to repeat instructions because he sounded like he was just going through the motions as fast as he could. I didn't trust the officer at this point. I tried to cooperate but felt the roadsides were a joke. He had already asked me if I had had anything to drink and I told him no. I refused because I knew I would blow zeros and then assumed he would think I was on drugs and make me provide blood sample then blaming my "impairment" on prescription medications I take for anxiety attacks.

John Lawrence Buckley

John Lawrence Buckley


That is precisely how to negate the jury instruction.

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