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

Legally Reviewed by Shazam Kianpour on August 31, 2026

Refusing a breath test carries a longer license revocation than failing one on a first offense, but neither choice is a safe way out of a Colorado DUI stop. A first-time refusal costs you a one-year revocation, while a first-time failure at a blood alcohol concentration (BAC) of .08 or higher costs nine months, and both outcomes come with additional consequences that can follow you well past the initial suspension.

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 the state. At Shazam Kianpour & Associates, we regularly represent Colorado drivers who are weighing this exact decision at the roadside, and we have watched the DMV side of these cases play out for years, which is why we keep this breakdown current.

What Colorado’s Expressed Consent Law Means for Drivers

Under C.R.S. § 42-2-126, holding a Colorado driver’s license means you have already agreed, as a condition of that license, to submit to a breath or blood test if an officer has probable cause to believe you are driving under the influence. This is separate from your Miranda rights and separate from your criminal case. It is an administrative agreement between you and the Colorado Department of Revenue, and it is enforced through the DMV, not through a judge or jury.

Once you are pulled over and an officer develops probable cause for impairment, you are asked to choose a test. Refusing outright, or failing to clearly select a test when given the option, both count as a refusal under the statute. Taking the test and testing at .08 or above counts as a failure, sometimes called an express consent “per se” violation. Each path triggers its own administrative revocation, independent of any criminal charges that follow.

Current License Revocation Periods for Test Refusals vs. Test Failures

We verified the figures below directly against the current text of C.R.S. § 42-2-126 and against Colorado State Patrol’s own public breakdown of the penalty gap between refusing and failing a chemical test. As of 2026, these are the license revocation periods for both violations:

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

These periods have held steady for several years and remain the current law as of this update, so the gap between refusing and failing is not a one-time penalty quirk. It is a deliberate structure the legislature built into the statute, and Colorado State Patrol has publicly reaffirmed the same first-offense split, nine months for a failure against a full year for a refusal, as recently as late 2025.

Why a Refusal Carries a Longer First-Offense Revocation Than a Failure

It can seem counterintuitive that refusing, which denies the state a piece of direct evidence, results in a longer revocation than actually failing the test. The reasoning behind this gap is not about punishing you more for having less evidence against you. It is about preserving the state’s ability to enforce the expressed consent law at all. If refusal carried the same or a lighter penalty than failure, drivers with a BAC well above .08 would have every incentive to refuse every time, since a refusal alone cannot prove a specific BAC in the same way a breath or blood result can.

By setting the refusal penalty above the first-offense failure penalty, the law removes that incentive. You can potentially limit the direct chemical evidence available to prosecutors by refusing, but you cannot avoid a steeper administrative consequence by doing so, and you may still face a separate DUI prosecution built on the officer’s observations, field sobriety testing, and the circumstances of the stop.

What It Means to Be Labeled a Persistent Drunk Driver

Colorado’s persistent drunk driver (PDD) designation is a separate administrative label the DMV can apply on top of a revocation, and it is not limited to repeat offenders. A first-time driver can be designated a PDD if any of the following applies: the test result comes back at a BAC of .15 or greater, the driver refuses the test, or the driver has two or more prior alcohol-related driving violations or revocations.

A PDD designation typically means a longer required period of ignition interlock use after reinstatement, mandatory Level II alcohol education and therapy, and extended SR-22 high-risk insurance filing requirements. We cover this designation in more depth in our breakdown of how harmful Colorado’s persistent drunk driver designation can be, since it affects refusal cases and high-BAC failure cases in very similar ways.

How the DMV Hearing Process Works and the Deadline to Request One

No matter which path you are on, you have the right to challenge a DMV license revocation at an administrative hearing before it takes effect. For a breath test case, whether it is a refusal or a failure, the current deadline to request that hearing is seven calendar days from the date you receive your notice of revocation. Blood test cases can run on a slightly different timeline because the state has to wait on lab results, so always confirm your specific deadline against the notice you were given rather than assuming seven days applies in every scenario.

Missing that window generally means the revocation takes effect automatically, with no hearing available to contest it. Our attorneys handle these deadlines and the hearing process itself on a regular basis, and you can read more about how we approach representing clients in DMV hearings, including express consent hearings and refusal hearings specifically.

Why the DMV Case Is Legally Separate From Your Criminal DUI Case

It is also worth remembering that the DMV hearing is entirely independent from any related DUI prosecution moving through the courts. These two processes run on separate tracks, with separate standards of proof, separate deadlines, and separate outcomes. Even if your underlying DUI charges are eventually dismissed or reduced, that outcome does not automatically undo a license revocation the DMV has already imposed, and a favorable DMV hearing result does not resolve your criminal case either.

This is one of the more frustrating realities for drivers navigating both fronts at once, and it is a major reason we encourage clients to treat the DMV hearing request deadline with the same urgency as any criminal court date.

How Our Firm Can Help

Shazam Kianpour founded our firm on the belief that Colorado drivers facing a DUI stop, a refusal, or a DMV revocation deserve a clear-eyed explanation of what they are up against, not vague reassurances. Our attorneys handle express consent hearings, refusal hearings, and the criminal DUI cases that often run alongside them, and we approach each one by looking closely at the facts of the stop, the testing procedure, and the specific administrative deadlines in play.

If you are facing a breath test refusal, a failed test, or a DMV notice of revocation in Colorado, the decisions you make in the first several days can affect both your license and your criminal case. Reach out through our contact page to talk through your situation with our team.

Frequently Asked Questions About Breath Test Refusals and Failures in Colorado

Written by

Shazam Kianpour

Denver Criminal Defense Attorney & Founder, Shazam Kianpour & Associates, P.C. — Over 10,000 criminal and traffic cases handled across Colorado.