Chemical Test Refusal in the Criminal and Administrative Context

bloodIn Colorado, when you are arrested for a DUI you are required to submit to a chemical test of your blood or breath under the state’s “express consent law.” Other states have similar laws (often called “implied consent laws”). In light of a recent Supreme Court case known as Missouri v. McNeely, the validity and application of these laws has been questioned—at least in the context of criminal cases. This post discusses the status of Colorado’s express consent law in the aftermath of McNeely as it relates to both the criminal and administrative process.

Administrative Context: Driver’s License Implications

When you are arrested for DUI, you not only face criminal charges in the courts, but also an administrative hearing through the DMV to determine the status of your driver’s license. In this context, a refusal to submit to a chemical test still creates a near certainty that your license will be suspended. While it is true that under the new federal case law an officer is required to obtain a warrant in order to force you to take a chemical test, no court has yet held that the civil penalty of driver’s license suspension is invalid as a result.

It is important to realize that in many cases, your driver’s license suspension will be valid regardless of the outcome of your criminal case. Even when the initial stop is illegal, which would result in exclusion of any evidence obtained from it in the criminal case, your driver’s license can still be suspended.

Criminal Context: Liberty Implications

After McNeely, the law requires police officers to first obtain a warrant in the event of a refusal if they force someone to submit to a chemical test. If they do not follow this procedure, the evidence obtained from the test may be excluded. While the courts have not gone so far as to invalidate consent laws as unconstitutional, it is now clear that:

  • Refusal to submit to a test is not presumptive evidence of guilt, and
  • The fourth amendment’s protections apply to evidence seized through forced blood draws.  

This means that in effect these laws have lost some of their bite. You DO have a right to refuse a chemical test. This does not mean that you will not ultimately be forced to submit to one, but it does mean that the police have to follow proper procedures in order to force you to comply.  Just as with a search of your home or vehicle, refusing to consent is often futile in actually stopping the search, but it does preserve your legal standing to challenge the search and suppress the evidence in court.

Ultimately, refusing a chemical test may be good for your legal position in the criminal proceedings against you. But it will likely end up harming you if you are hoping to keep your driver’s license. This potential tradeoff is unpleasant, and the advantages or disadvantages may vary from case to case. While losing your driver’s license is certainly an inconvenience, for some people it may be a reasonable trade-off in order to avoid the stigma and expense of a criminal conviction.

Contact a Colorado DUI Defense Attorney

When you are arrested for DUI, you are not afforded the right to counsel before being required to submit to a chemical test. After the fact, you do have that right. Whatever happened in your case, the attorneys at The Tiftickjian Law Firm know how to mount the best defense available for you in both the DMV proceeding and the criminal proceeding. If we take your case, we will apply our expertise and dedication to every aspect of your case and ensure that your rights are respected in every phase of the process. While we cannot take every case, we provide referrals if we can not accept a case, and those cases we do accept receive the highest quality representation from the best DUI attorneys in the state.

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