mertes-law-justiceColorado law requires that you consent to a DUI test, typically blood or breath, if a police officer has reasonable grounds to believe that you were driving under the influence (DUI) or driving while your ability was impaired (DWAI) because of the consumption of alcohol, drugs or both.

It is also important to note that in Colorado you can be charged as a DUI driver whether the drugs that were taken or suspected of being taken, were prescribed or were obtained over-the-counter, such as a cough medicine.

In circumstances where you are given a DUI test and the results indicate that you consumed no alcohol, an officer can request a second test of your blood, urine or saliva for drugs.

Absent medical issues, a pending felony charge, a specific focus on drug intoxication or impairment, or “extraordinary circumstances” which Colorado law defines as including weather related delays, high call volumes involving medical personnel, power outages, malfunctioning breath test equipment and other circumstances that preclude the timely collection of a breath or blood sample by a qualified person in accordance with law, you get to choose your DUI test. However, you don’t get to change your mind once you’ve notified the officer of your choice.

Important legal issues arise when an officer doesn’t honor your choice of a DUI test, if you refuse a DUI test, if you reconsider your earlier refusal to submit to a DUI test and the officer refuses your request, and when an officer or police agency fails to comply with the rules and regulations that govern DUI tests in Colorado.

In Colorado a DUI test result that registers between .02 and .05 blood alcohol content (BAC) for an individual under the age of 21, will result in a charge of underage DUI. A DUI test result between .05 and .079 BAC will result in a charge of DWAI, a DUI test result over.08 will result in a charge of DUI, with enhanced penalties for test results over .200 BAC.

Police officers will frequently charge a person with a DUI test over .08 BAC with both DUI and DUI per se, essentially this gives police and prosecutors two ways to convict you of DUI. A charge of DUI requires proof beyond a reasonable doubt that you were substantially incapable of safely driving as a result of the consumption of alcohol, drugs or both. To prove you were guilty of a DUI per se charge a prosecutor needs only to establish that you were driving with a BAC over .08 beyond a reasonable doubt.

You can be prosecuted for DUI in Colorado even when you refuse a chemical test and it is important to know that in Colorado a jury will be told, in most cases, that you refused to be tested.