Under Colorado’s Expressed Consent (EC) Law any person who drives a motor vehicle upon the streets and highways or elsewhere throughout the state is required to take and complete, and to cooperate in the taking and completing of, a test of the person’s breath or blood for the purpose of determining the alcoholic content of the person’s blood or breath when so directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the state’s impaired driving laws. If a law enforcement officer requests a chemical test the person must cooperate with the request in such a manner that the sample of blood or breath can be obtained within two hours of the person’s driving.
Under the EC law one who is over twenty-one years of age or older is entitled to elect between a blood test or a breath test. Once that decision is made, however, the person is not allowed to change their mind.
If one elects a breath test and the result is .08 or greater the officer will serve that individual with what is called an Express Consent Affidavit and Notice of Revocation. If one elects a blood test it can take several months to obtain the test results. If the results come back at greater than .08, the arresting officer is then required to execute the Notice and Affidavit and submit it to the DMV. The DMV then mails the Notice and Affidavit to the individual.
Once provided with the Affidavit and Notice the person has seven days to request a DMV hearing. The request must be made in writing at a DMV office. Requesting a hearing stays the revocation of the individual’s driver’s license until the date of the hearing, which must be scheduled within 60 days of the request. If the Affidavit and Notice issued as the result of blood test results, the individual has ten days from the date of the mailing of the document to request the hearing. For those who submit to a blood test it is very important that they ensure the DMV has their current mailing address so that they receive the Notice and Affidavit if the test results come back at greater than .08 in order that they can request the hearing.
If an EC hearing is not requested within the required time frame the individual forfeits all right to a hearing and the revocation of the driver’s license takes effect at the end of the seven-day period (or ten-day period if the Notice and Affidavit were mailed following a blood test).
A refusal to submit to a breath or blood test does not result in a criminal charge. However, such a refusal will result in the revocation of the person’s driver’s license if the officer had probable cause to invoke the expressed consent law. Additionally, a person’s refusal to provide a breath or blood sample is admissible in court.