Russell Hebets Oct. 7, 2013

In Colorado, if a motorist is stopped and detained by a police officer who has probable cause to believe that the motorist is under the influence of alcohol, the motorist is required by law to submit to a chemical test of their breath or blood to determine their blood alcohol content (BAC). If the motorist refuses to take a test, their license is immediately suspended for a one year: no questions asked; no chance for a restricted license.

Interestingly enough, if a motorist complies with a test and he tests over the legal limit of .08, he will lose his license, but he can get it back in 30 days as long as he outfits his car with an ignition interlock device for the remainder of the suspension. It doesn’t matter how high the BAC is- it could be 10 times the legal limit and he could have vomited all over the cop’s shoes, and he will still be driving legally after 30 days. Clearly, as the law exists now, there is a huge penalty for refusing to take a test. The purpose behind this penalty is to provide an incentive for a motorist to comply with testing.

This is all about to change. The Colorado legislature passed a law that goes into effect in January of 2014 that reduces a refusal revocation from one year to 60 days. Thus, the DMV is essentially imposing an additional 30 day penalty for a driver who refuses to take a test, but this penalty is reduced significantly from the 1 year revocation requirement currently in place.

This is going to have an impact on whether or not a person decides to refuse testing. Here is the dilemma: if a motorist takes a test and the result is over the legal limit, his license will be revoked, and the district attorney can use the result against them, however the revocation will only last 30 days. If they refuse, it will be a 60 day revocation, however the district attorney will not be able introduce any test to show how drunk the person was. The DA can still argue at trial that a refusal to take a test is tantamount to hiding evidence, and that this can be used as an inference of guilt, but jurors may still find reasonable doubt without a test.

It will be interesting to see how this change will impact the decisions that these motorists make, and we will be watching this issue closely.