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Which is penalized worse: failing a breath test or refusing one?

Like many other states, Colorado has an expressed consent law that states that drivers are “deemed to have expressed [their] consent” to chemical testing simply by driving anywhere within Colorado.

This means that police will likely ask you to submit to a breath or blood test should they pull you over and have probable cause to believe you are driving impaired. While it is obvious that you will face penalties if you take the test and fail, what happens if you refuse? Well, you can face some pretty hefty penalties for a refusal as well, including a license revocation by the DMV.

For instance, below are the license revocation periods for both test refusals and failures:

Test Refusals:

  • First violation: One-year license revocation
  • Second violation: Two-year license revocation
  • Third violation: Three-year license revocation

Test Failure (BAC of .08 or more)

  • First violation: Nine-month license revocation
  • Second violation: One-year license revocation
  • Third violation: Two-year license revocation

Given what is at stake, it is obviously a difficult decision when police ask you to submit to Breathalyzer. On one hand, a refusal will limit the evidence against you, but you will lose your driver’s license, not to mention you may still face drunk driving charges anyway (plus the additional penalties that go along with a conviction).

On the other hand, if you take the test hoping to pass, but instead fail, a conviction is almost guaranteed. Plus, you run the risk of being designated as a persistent drunk driver if the test shows a BAC of .15 or greater.

No matter your decision, however, you do have an opportunity to challenge a DMV license revocation at an administrative hearing. But, you only have seven days to request a hearing after receiving your notice of revocation, so you need to act fact.

Also, it is important to remember that this hearing is independent from any related DUI prosecution. For instance, even if your DUI charges are dismissed, it will not affect any license revocation imposed by the DMV. In any case, you need to contact an experienced attorney right away

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