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Shazam Kianpour

& Associates, P.C.

Available 24/7 – Free Initial Consultation

A PROVEN DEFENSE TEAM

COMMITTED TO PROTECTING YOU

A PROVEN DEFENSE TEAM

COMMITTED TO PROTECTING YOU

Can I choose a blood test instead of a breath test?

| Aug 6, 2018 | Firm News

If you drive a motor vehicle in Colorado, the state’s expressed consent law says that you are already “deemed to have expressed [your] consent” to the testing of your breath or blood to determine whether you have alcohol in your system.

What does this mean exactly? Essentially, it means that you are required to take a breath or blood test so long as the police have probable cause to believe you are violating the state’s DUI or DWAI laws. Therefore, if you are arrested for impaired driving, you must take a breath or blood test — and if you refuse, your license will be revoke and you may still face DUI charges.

However, while the expressed consent law says you are required to take a breath or blood test, it also says you get to choose which one. In fact, the law specifically states:

  • Drivers who are 21-years-old or older can request a blood test instead of a breath test. These same drivers also have the option of saying they do not want a blood test, in which case a breath test will be administered.
  • Drivers under the age of 21 can also request a blood test instead of a breath test, unless their alleged violation is “underage drinking and driving,” in which case a breath test will be administered.

It is important to mention, however, that once you pick either a blood or breath test, you cannot change your mind — meaning you can be charged with a “refusal” if you fail to cooperate in the completion of the test you originally requested.

But, there is one caveat to this rule: If you elected to take a breath test, but are unable to do so because “injuries, illness, disease, physical infirmity, or physical incapacity, or [you are] receiving medical treatment at a location at which a breath testing instrument certified by the department of public health and environment is not available,” you can have a blood test instead.

It is also important to remember that, due to extraordinary circumstances, police may have the option to ask you to take a different test, particularly if the extraordinary circumstances make it impossible to complete the originally-requested test within two hours of your driving. But these instances should be rare.

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