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My BAC test was taken more than 2 hours after driving — now what?

On Behalf of | Aug 16, 2018 | Firm News |

If you are arrested for drunk driving in Colorado and the police have probable cause to believe you violated one of the state’s drunk-driving statutes, the law says you are required to cooperate with police and submit to a breath or blood test in order determine your blood-alcohol-content (BAC). If you refuse, you can face certain penalties, including the loss of your license.

However, if you cooperate with the BAC testing, it is important to remember that you can choose whether you want to take a breath test or a blood test. Also, Colorado law states that the police only have two hours from the time you were driving to administer your BAC test. If they fail to complete your selected BAC test by then, the results will be presumptively invalid — meaning they typically cannot be used against you.

One thing to keep in mind, however, is that the police may be able to ask you to switch tests if circumstances prevent them from completing your selected BAC test within two hours, but only in rare situations.

Extraordinary circumstances” — what they are and why they matter

If “extraordinary circumstances” exist that prevent the police from completing the BAC test you initially requested within the two-hour time frame, they can ask you to complete the other test. For example, if you originally requested a blood test following a drunk driving arrest, the police may ask you to submit to a breath test instead, but only when “extraordinary circumstances” are present.

Specifically, the phrase “extraordinary circumstances” means situations beyond the control of, and not created by, the police officer, including:

  • Weather-related delays
  • Power outages
  • High call volume affecting medical personnel
  • Malfunctioning breath test equipment

Importantly, “extraordinary circumstances” does not include mere inconveniences or a busy workload for the police officer. Nor does it include routine circumstances that are subject to the control of the officer.

Given this very narrow definition, it should be easy to see why situations in which police are able to ask drivers to switch their BAC tests are so rare.