42-4-1301.1. Expressed consent for the taking of blood, breath, urine, or saliva sample - testing - fund - rules - repeal.

Statute text

(1) Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person's consent to the provisions of this section.

(2) (a) (I) A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person's breath or blood for the purpose of determining the alcoholic content of the person's blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, or UDD. Except as otherwise provided in this section, if a person who is twenty-one years of age or older requests that the test be a blood test, then the test shall be of his or her blood; but, if the person requests that a specimen of his or her blood not be drawn, then a specimen of the person's breath shall be obtained and tested. A person who is under twenty-one years of age shall be entitled to request a blood test unless the alleged violation is UDD, in which case a specimen of the person's breath shall be obtained and tested, except as provided in subparagraph (II) of this paragraph (a).

(II) Except as otherwise provided in paragraph (a.5) of this subsection (2), if a person elects either a blood test or a breath test, the person shall not be permitted to change the election, and, if the person fails to take and complete, and to cooperate in the completing of, the test elected, the failure shall be deemed to be a refusal to submit to testing. If the person is unable to take, or to complete, or to cooperate in the completing of a breath test because of injuries, illness, disease, physical infirmity, or physical incapacity, or if the person is receiving medical treatment at a location at which a breath testing instrument certified by the department of public health and environment is not available, the test shall be of the person's blood.

(III) If a law enforcement officer requests a test under this paragraph (a), the person must cooperate with the request such that the sample of blood or breath can be obtained within two hours of the person's driving.

(a.5) (I) If a law enforcement officer who requests a person to take a breath or blood test under paragraph (a) of this subsection (2) determines there are extraordinary circumstances that prevent the completion of the test elected by the person within the two-hour time period required by subparagraph (III) of paragraph (a) of this subsection (2), the officer shall inform the person of the extraordinary circumstances and request and direct the person to take and complete the other test described in paragraph (a) of this subsection (2). The person shall then be required to take and complete, and to cooperate in the completing of, the other test.

(II) A person who initially requests and elects to take a blood or breath test, but who is requested and directed by the law enforcement officer to take the other test because of the extraordinary circumstances described in subparagraph (I) of this paragraph (a.5), may change his or her election for the purpose of complying with the officer's request. The change in the election of which test to take shall not be deemed to be a refusal to submit to testing.

(III) If the person fails to take and complete, and to cooperate in the completing of, the other test requested by the law enforcement officer pursuant to subparagraph (I) of this paragraph (a.5), the failure shall be deemed to be a refusal to submit to testing.

(IV) (A) As used in this paragraph (a.5), "extraordinary circumstances" means circumstances beyond the control of, and not created by, the law enforcement officer who requests and directs a person to take a blood or breath test in accordance with this subsection (2) or the law enforcement authority with whom the officer is employed.

(B) "Extraordinary circumstances" includes, but shall not be limited to, weather-related delays, high call volume affecting medical personnel, power outages, malfunctioning breath test equipment, and other circumstances that preclude the timely collection and testing of a blood or breath sample by a qualified person in accordance with law.

(C) "Extraordinary circumstances" does not include inconvenience, a busy workload on the part of the law enforcement officer or law enforcement authority, minor delay that does not compromise the two-hour test period specified in subparagraph (III) of paragraph (a) of this subsection (2), or routine circumstances that are subject to the control of the law enforcement officer or law enforcement authority.

(b) (I) Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to submit to and to complete, and to cooperate in the completing of, a test or tests of such person's blood, saliva, and urine for the purpose of determining the drug content within the person's system when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI or DWAI and when it is reasonable to require such testing of blood, saliva, and urine to determine whether such person was under the influence of, or impaired by, one or more drugs, or one or more controlled substances, or a combination of both alcohol and one or more drugs, or a combination of both alcohol and one or more controlled substances.

(II) If a law enforcement officer requests a test under this paragraph (b), the person must cooperate with the request such that the sample of blood, saliva, or urine can be obtained within two hours of the person's driving.

(3) Any person who is required to take and to complete, and to cooperate in the completing of, any test or tests shall cooperate with the person authorized to obtain specimens of such person's blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing. No law enforcement officer shall physically restrain any person for the purpose of obtaining a specimen of such person's blood, breath, saliva, or urine for testing except when the officer has probable cause to believe that the person has committed criminally negligent homicide pursuant to section 18-3-105, C.R.S., vehicular homicide pursuant to section 18-3-106 (1)(b), C.R.S., assault in the third degree pursuant to section 18-3-204 , C.R.S., or vehicular assault pursuant to section 18-3-205 (1)(b), C.R.S., and the person is refusing to take or to complete, or to cooperate in the completing of, any test or tests, then, in such event, the law enforcement officer may require a blood test.

(4) Any driver of a commercial motor vehicle requested to submit to a test as provided in paragraph (a) or (b) of subsection (2) of this section shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test shall result in an out-of-service order as defined under section 42-2-402 (8) for a period of twenty-four hours and a revocation of the privilege to operate a commercial motor vehicle for one year as provided under section 42-2-126.

(5) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person had been driving a motor vehicle in violation of section 42-4-1301 and in accordance with rules and regulations prescribed by the department of public health and environment concerning the health of the person being tested and the accuracy of such testing.

(6) (a) No person except a physician, a registered nurse, an emergency medical service provider certified or licensed under part 2 of article 3.5 of title 25 who is authorized within his or her scope of practice to draw blood, or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall withdraw blood to determine the alcohol or drug content of the blood for purposes of this section.

(b) No civil liability shall attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which such specimens are obtained as provided in this section as a result of the act of obtaining such specimens from any person submitting thereto if such specimens were obtained according to the rules and regulations prescribed by the department of public health and environment; except that this provision shall not relieve any such person from liability for negligence in the obtaining of any specimen sample.

(7) A preliminary screening test conducted by a law enforcement officer pursuant to section 42-4-1301 (6)(i) shall not substitute for or qualify as the test or tests required by subsection (2) of this section.

(8) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of the person's blood or any drug content within such person's system as provided in this section. If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva that was obtained and not utilized by a health-care provider and shall have access to that portion of the analysis and results of any tests administered by such provider that shows the alcohol or drug content of the person's blood, urine, or saliva or any drug content within the person's system. Such test results shall not be considered privileged communications, and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have the person's blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made a part of the accident report.

(9) (a) There is created in the state treasury the evidential breath-testing cash fund, referred to in this section as the "fund", for the collection of moneys to purchase breath-testing devices for law enforcement agencies. The fund includes any moneys appropriated to the fund by the general assembly and any moneys credited to the fund pursuant to paragraph (c) of this subsection (9). The moneys in the fund are subject to annual appropriation by the general assembly to the department of public health and environment created in section 25-1-102, C.R.S., for the purposes described in this subsection (9).

(b) All interest derived from the deposit and investment of moneys in the fund must remain in the fund. Any unexpended or unencumbered moneys remaining in the fund at the end of a fiscal year must remain in the fund and not be transferred or credited to the general fund or another fund; except that any such unexpended and unencumbered moneys in excess of two million dollars must be credited to the general fund.

(c) The department of public health and environment is authorized to accept any gifts, grants, or donations from any private or public source on behalf of the state for the purposes described in this section. The department of public health and environment shall transmit all such gifts, grants, and donations to the state treasurer, who shall credit the same to the fund.

(d) The state board of health created in section 25-1-103, C.R.S., may promulgate rules for the administration of the fund for the purposes described in this subsection (9).

(e) This subsection (9) is repealed, effective September 1, 2024. Before repeal, the department of regulatory agencies, pursuant to 24-34-104, shall review the use of the fund by the department of public health and environment for the purposes described in this subsection (9).

History

Source: L. 2002: Entire section added with relocations, p. 1907, 3, effective July 1. L. 2007: (2)(a) amended and (2)(a.5) added, p. 1022, 1, effective July 1. L. 2012: (6)(a) amended, (HB 12-1059), ch. 271, p. 1439, 25, effective July 1. L. 2013: (2)(a)(I) and (2)(b)(I) amended, (HB 13-1325), ch. 331, p. 1884, 14, effective May 28. L. 2014: (9) added, (HB 14-1310), ch. 294, p. 1199, 1, effective August 6. L. 2019: (6)(a) amended, (SB 19-242), ch. 396, p. 3532, 26, effective May 31.

Annotations

Editor's note: This section is similar to former 42-4-1301 (6), (7)(a), (7)(b), and (7)(c) and 42-2-126 (2)(a)(II) as they existed prior to 2002.

Annotations

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Implied Consent.
III. Express Consent.
A. Constitutionality.
B. Purpose.
C. Prerequisites to Testing.
D. Testing Requirements.
E. Multiple Samples.
F. Refusal to Take Test.

I. GENERAL CONSIDERATION.

Law reviews. For comment, "The Theory and Practice of Implied Consent in Colorado", see 47 U. Colo. L. Rev. 723 (1976). For article, "Review of new Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982). For article, "The New Colorado Per Se DUI Law", see 12 Colo. Law. 1451 (1983). For article, "Drunk Driving Laws: A Study of the Views of Colorado Trial Judges", see 14 Colo. Law. 189 (1985). For article, "DUI Defense Under the Per Se Law", see 14 Colo. Law. 2155 (1985). For comment, "The Constitutionality of Drunk Driving Roadblocks", see 58 U. Colo. L. Rev. 109 (1986-87). For article, "A DUI Primer", see 16 Colo. Law. 2179 (1987). For comment, "Greathouse: Has Colorado Abandoned the Protections of Garcia?", see 59 U. Colo. L. Rev. 351 (1988). For article, "Drinking and Driving: An Update on the 1989 Legislation", see 18 Colo. Law. 1943 (1989). For article, "A Young Lawyer's Guide to DUI Suppression Motions", see 25 Colo. Law. 63 (Apr. 1996). For article, "Drunk Drivers and Blood Draws in Colorado", see 43 Colo. Law. 27 (Feb. 2014).

Annotator's note. (1) Annotations resulting from cases involving the implied consent law, which was replaced by the express consent law in 1983, have been included under this heading where appropriate and relevant.

(2) Since 42-4-1301.1 is similar to 42-4-1301 as it existed prior to its 2002 amendment with relocations and 42-4-1202 as it existed prior to the 1994 amending of title 42 as enacted by SB 94-1, relevant cases construing those provisions have been included in the annotations to this section.

II. IMPLIED CONSENT.

Annotator's note. The annotations below resulted from cases involving the implied consent law, which was replaced by the express consent law in 1983, and have been included for historical purposes.

This section was known as the "implied consent law". Colo. Dept. of Rev. v. District Court ex rel. County of Adams, 172 Colo. 144, 470 P.2d 864 (1970).

The implied consent law is constitutional. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007 (1972); Sweeney v. State Dept. of Rev., 185 Colo. 116, 522 P.2d 101 (1974).

This section is not unconstitutional as violative of equal protection. Norsworthy v. Colo. Dept. of Rev., 197 Colo. 527, 594 P.2d 1055 (1979).

The statutory scheme militates against a standardless discretion in enforcement and does not violate equal protection of the laws. Davis v. Colo. Dept. of Rev., 623 P.2d 874 (Colo. 1981).

The federal constitution does not prohibit the states from requiring a driver to submit to chemical testing of his blood shortly after a valid arrest. People v. Gillett, 629 P.2d 613 (Colo. 1981).

This section does not violate constitutional standards because the statute does not expressly require an evidentiary hearing on the issue of any alleged refusal to submit to some form of test to determine the alcohol content of a driver's breath or blood. The statutory requirement of a specific averment by the arresting officer that the driver refused to submit to an appropriate chemical analysis test makes the issue of refusal a question of fact, permitting the driver to present evidence contrary to such an averment and requiring the hearing officer to make a finding on such a factual issue based on all of the evidence. DuPuis v. Charnes, 668 P.2d 1 (Colo. 1983).

The failure of the implied consent statute to provide for a probationary license does not violate equal protection of the laws. DeScala v. Motor Vehicle Div., 667 P.2d 1360 (Colo. 1983).

The implied consent law met the constitutional requirements of due process. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007 (1972).

Probable cause is required before test may be administered. People v. Grassi, 192 P.3d 496 (Colo. App. 2008), aff'd, 2014 CO 12, 320 P.3d 332, cert. denied, 574 U.S. 1014 (2014).

Probable cause may be established under the fellow-officer rule if two conditions are met: (1) The officer acts pursuant to a coordinated investigation, and (2) the police, as a whole, possess the information giving rise to probable cause at the time of the search or arrest. Grassi v. People, 2014 CO 12, 320 P.3d 332, cert. denied, 574 U.S. 1014 (2014).

The implied consent law gave rights which were greater than those required by due process. It specifically provided that at the time of the request to take the test, the officer shall inform the licensee orally and in writing "of his rights under the law and the probable consequences of refusal to submit to such a test". Vigil v. Motor Vehicle Div., 184 Colo. 142, 519 P.2d 332 (1974).

Reason implied consent statute enacted. The implied consent statute was enacted to assist in the prosecution of the drinking driver. Calvert v. State Dept. of Rev., 184 Colo. 214, 519 P.2d 341 (1974); People v. Carlson, 677 P.2d 310 (Colo. 1984).

The implied consent law was enacted to assist law enforcement officers in prosecuting the drinking driver. Zahtila v. Motor Vehicle Div., 39 Colo. App. 8, 560 P.2d 847 (1977).

Purpose of revocation penalty. To encourage the suspected drunk driver to take a blood-alcohol test voluntarily, the implied consent statute imposed an automatic revocation penalty, with very few exceptions, on those who refused to take the test. Calvert v. State Dept. of Rev., 184 Colo. 214, 519 P.2d 341 (1974).

Written notice required. Former subsection (3)(b) required that the "person arrested" be given an explanation, in written form, of his rights and the probable consequences of refusing to submit to a test, in order that he may read and study the same before having to make a decision. Cantrell v. Weed, 35 Colo. App. 180, 530 P.2d 986 (1974); Cooper v. Nielson, 687 P.2d 541 (Colo. App. 1984) (decided under subsection (3) prior to 1983 repeal and reenactment).

Such notice must be physically offered to licensee at time of test. Under former subsection (3)(b) notice in writing had to be physically handed or offered to the licensee contemporaneously with or prior to the officer's request for the sobriety test. Cantrell v. Weed, 35 Colo. App. 180, 530 P.2d 986 (1974).

Merely affording driver the opportunity to "read along" while the officer orally recited the form containing written notice of the consequences of refusal to submit to test was not sufficient to constitute written notice under former subsection (3)(b). Cantrell v. Weed, 35 Colo. App. 180, 530 P.2d 986 (1974).

Where the arresting officer testified unequivocally that he read the advisement form to the plaintiff and offered him the opportunity to read it for himself, but that the plaintiff refused to do so, the evidence was sufficient to support a hearing examiner's finding that the plaintiff was properly advised under former subsection (3)(b). Gilbert v. Dolan, 41 Colo. App. 173, 586 P.2d 233 (1978).

How warning should be phrased. The warning under former subsection (3)(b) had to be phrased so that a person of normal intelligence would understand the consequences of his actions. Calvert v. State Dept. of Rev., 184 Colo. 214, 519 P.2d 341 (1974).

What licensee to be informed of. The implied consent law required that the licensee be informed of both the hearing and the possibility of the revocation of the license. Vigil v. Motor Vehicle Div., 184 Colo. 142, 519 P.2d 332 (1974).

A licensee was advised of the "probable consequences of refusal" under former subsection (3)(b) if he was informed that his license "might" be revoked. Hall v. Charnes, 42 Colo. App. 111, 590 P.2d 516 (1979).

Where the motorist was given the Miranda v. Arizona, 384 U.S. 436 (1966), warnings and he manifested his desire to call his attorney before deciding whether or not to submit to the test, but was not told that he had no such right, under these circumstances, the motorist should have been advised that the right to remain silent does not include the right to refuse to submit to the test or the right to prior consultation with an attorney. Calvert v. State Dept. of Rev., 184 Colo. 214, 519 P.2d 341 (1974).

The fact that the defendant was handcuffed and could neither touch nor feel the implied consent form when it was read to him was of no consequence where it was placed in such a position that he could, if he so desired, read it, and he was given the form as soon as practicable when his handcuffs were removed. Herren v. Motor Vehicle Div., 39 Colo. App. 146, 565 P.2d 955 (1977).

Officer was not required to orally advise a driver of his rights prior to a second request to submit to a blood alcohol test which was accompanied by a written advisement of the driver's rights. Bowker v. Charnes, 679 P.2d 1119 (Colo. App. 1984).

Notice requirements of former subsection (3)(b) were not violated by the fact that the advisement form read by an arresting officer to one stopped for suspicion of driving while intoxicated did not state that an individual could refuse to submit to a test if it would be medically inadvisable for him to do so or if the test to be given would not conform to the rules and regulations prescribed by the state board of health. Zinn v. Dolan, 41 Colo. App. 370, 588 P.2d 389 (1978).

The only valid justifications in the implied consent law for refusing the test are either that it was medically inadvisable for the licensee or that the test would not be given in compliance with proper health standards. Vigil v. Motor Vehicle Div., 184 Colo. 142, 519 P.2d 332 (1974).

The implied consent law applied only to the misdemeanor offense of driving under the influence of intoxicating liquor as defined in this section. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970).

The consent provision of this section applied only to misdemeanor offenses and not to felonies. People v. Acosta, 620 P.2d 55 (Colo. App. 1980).

One charged with felony could not claim consent to test was statutorily or constitutionally required. Inasmuch as this section did not extend to felonies, a defendant charged with the felony of causing injury while driving under the influence of intoxicating liquor could not claim any statutory right to refuse to take a breathalyzer test. Since consent was neither statutorily nor constitutionally required, it was immaterial whether such defendant was inadequately advised or whether his consent was uninformed. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970).

One could not be compelled to take a roadside sobriety test against one's wishes. People v. Helm, 633 P.2d 1071 (Colo. 1981).

Other jurisdictions, with similar implied consent laws, have unanimously found their statutes to be merely permissive and not mandatory. People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975).

III. EXPRESS CONSENT.

Annotator's note. Annotations resulting from cases involving the implied consent law, which was replaced by the express consent law in 1983, have been included under this heading where appropriate and relevant.

A. Constitutionality.

Law reviews. For article, "One Year Review of Constitutional and Administrative Law", see 36 Dicta 11 (1959).

There is no constitutionally guaranteed illimitable right to drive upon highways. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007 (1972).

State's exercise of police power. An individual's right to use the public highways of this state is an adjunct of the constitutional right to acquire, possess, and protect property, yet such a right may be limited by a proper exercise of the police power of the state based upon a reasonable relationship to the public health, safety, and welfare. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007 (1972).

There is no constitutional right to refuse to surrender blood for a chemical analysis to determine its alcohol content. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007 (1972).

This section does not violate equal protection. A rational basis exists for the statute's differential treatment of individuals who receive medical treatment at locations without breath testing equipment because providing such individuals with the option of choosing a breath test would cause delays in obtaining test samples. These delays would substantially hinder the state's legitimate public safety interest in securing timely alcohol test results for individuals suspected of driving while intoxicated. Evans v. Dept. of Rev., 159 P.3d 769 (Colo. App. 2006).

This section is not unconstitutionally vague. The words and phrases of this section are readily comprehensible to persons of ordinary intelligence without further definition. The statute, in sufficiently clear terms, provides individuals with fair warning as to the circumstances under which a choice of tests is, and is not, available. Evans v. Dept. of Rev., 159 P.3d 769 (Colo. App. 2006).

The right to refuse a blood test under the implied consent (now express consent) law is a statutory right only and as such is subject to the sanction of possible suspension of one's driver's license. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007 (1972); Fitzgerald v. People, 2017 CO 26, 394 P.3d 671; People v. King, 2017 CO 44, 401 P.3d 516; People v. Sewick, 2017 CO 45, 401 P.3d 521; People v. Maxwell, 2017 CO 46, 401 P.3d 523; People v. Maxwell, 2017 CO 47, 401 P.3d 518.

Right to refuse. Statutory, not constitutional, law provides the basis for determining whether there is any requirement that a motorist alleged to have violated drunk driving statute must be advised of right to refuse or to choose a type of blood alcohol test. Moreover, no such statutorily required advisement exists. Brewer v. Motor Vehicle Div., Dept. of Rev., 720 P.2d 564 (Colo. 1986); Smith v. Charnes, 728 P.2d 1287 (Colo. 1986); Evans v. Dept. of Rev., 159 P.3d 769 (Colo. App. 2006).

Miranda warnings are not required before the administration of a roadside sobriety test. People v. Helm, 633 P.2d 1071 (Colo. 1981); People v. Lowe, 687 P.2d 454 (Colo. 1984).

Use of refusal to consent to blood alcohol test as evidence of guilt does not violate fourth amendment right prohibiting unreasonable search. Defendant argued that use of refusal-to-consent evidence penalized the exercise of a defendant's right to refuse consent. Refusal to consent to testing is a statutory right under the express consent statute. While criminalizing a refusal to consent would be improper, use of refusal to consent as evidence of guilt and automatic suspension of driving privileges for refusal would not impermissibly burden a defendant's fourth amendment constitutional right to be free from a warrantless search. Fitzgerald v. People, 2017 CO 26, 394 P.3d 671; People v. King, 2017 CO 44, 401 P.3d 516; People v. Sewick, 2017 CO 45, 401 P.3d 521; People v. Maxwell, 2017 CO 46, 401 P.3d 523; People v. Maxwell, 2017 CO 47, 401 P.3d 518.

A motorist does not have a constitutional right to talk with an attorney before choosing whether to submit to the test. Calvert v. State Dept. of Rev., 184 Colo. 214, 519 P.2d 341 (1974).

Driver was not prejudiced by the failure of arresting officer to warn him that he had no right to counsel under this statute. Sauer v. Heckers, 34 Colo. App. 217, 524 P.2d 1387 (1974).

There was no duty to advise defendant that he had no right to counsel prior to deciding whether to permit a chemical test of his blood where he was given an opportunity to make a phone call and despite defendant's confusion between his fifth amendment rights to counsel and his rights under the implied consent law. Washington v. Dolan, 38 Colo. App. 414, 557 P.2d 1223 (1976).

A motorist has no right under the Colorado implied consent (now express consent) law to confer with counsel prior to deciding whether to consent to a chemical test. Drake v. Colo. Dept. of Rev., 674 P.2d 359 (Colo. 1984).

Failure to submit to test because wanting attorney is refusal. Generally, when a suspect does not submit to the test because he wants to talk to his attorney before deciding whether to take the test, it is deemed a refusal as a matter of law. Drake v. Colo. Dept. of Rev., 674 P.2d 359 (Colo. 1984).

It is generally true that when a suspect does not submit to the test under this section because he requests to call his attorney first, this is deemed a "refusal" as a matter of law. Calvert v. State Dept. of Rev., 184 Colo. 214, 519 P.2d 341 (1974).

Taking of blood not violation of privilege against self-incrimination. The privilege against self-incrimination protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature, and the withdrawal of blood and use of the analysis in a case does not involve compulsion to these ends. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007 (1972).

Privilege against self-incrimination does not extend to results obtained from roadside sobriety test. Such a test does not contravene the privilege by requiring the subject to divulge any knowledge he might have; the fact that the subject's guilt may be inferred from the results of the test goes to the probity of the testing method, not to its character as a supposed confession surrogate. People v. Ramirez, 199 Colo. 367, 609 P.2d 616 (1980).

Statutory changes not impermissible under constitution. The deletion of a provision for the offense of driving while ability is impaired by alcohol, and the amendments made and adopted relating to implied consent during the course of legislative proceedings, amending what is now 42-4-1202, did not amount to an impermissible change in the purpose of the original bill so as to violate 17 of art. V, Colo. Const. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007 (1972).

Constitutional prohibition of unlawful searches and seizures and constitutional privilege against self-incrimination are not violated when police officer requires driver to submit to a blood or breath test. People v. Bowers, 716 P.2d 471 (Colo. 1986).

Taking of blood is not unreasonable search and seizure. Although it has been determined that the taking of blood is an intrusion of the person and a search within the meaning of the state and federal constitutions, such is not an unreasonable search and seizure violative of the fourth amendment or 7 of art. II, Colo. Const. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007 (1972).

A search warrant is not required prior to taking the tests. Stream v. Heckers, 184 Colo. 149, 519 P.2d 336 (1974).

Taking of blood held reasonable search. Notwithstanding the fact that the blood extraction for the purpose of administering blood-alcohol test took place in a nonmedical environment without a doctor or nurse present, where a record reveals that a highly qualified and experienced medical technologist took the blood sample in conformity with the department of health regulations and with no infringement upon the personal dignity of the defendant, the taking was well within the ambit of a reasonable search. People v. Mari, 187 Colo. 85, 528 P.2d 917 (1974).

The prohibition against forced specimen collection in subsection (3) applies only to warrantless searches based on implied consent. People v. Raider, 2022 CO 40, 516 P.3d 911.

The prohibition against forced specimen collection has no bearing on searches executed pursuant to a valid search warrant for which consent is unnecessary. Consent, rather, operates as an exception to the fourth amendment warrant requirement. People v. Raider, 2022 CO 40, 516 P.3d 911.

Statutory consent satisfies consent exception to fourth amendment warrant requirement. By driving in the state, driver consented to the terms of this section, including its requirement that driver submit to a blood draw. That prior statutory consent eliminated the need for the trial court to assess the voluntariness of driver's consent at the time of the interaction with law enforcement. People v. Simpson, 2017 CO 25, 392 P.3d 1207.

No constitutional right to withdraw statutory consent to blood alcohol testing. By driving in the state, drivers expressly consent to blood alcohol testing in certain circumstances, and the law requires testing of an unconscious driver. Law enforcement is not required to wait until an unconscious driver regains consciousness to allow an opportunity to withdraw statutory consent. People v. Hyde, 2017 CO 24, 393 P.3d 962.

By driving a motor vehicle in the state, a conscious driver expressly consents to a warrantless blood draw in the event a law enforcement officer has probable cause to believe the driver committed vehicular homicide. People v. Tarr, 2022 COA 23, 511 P.3d 672.

And the trial court did not err by admitting the evidence of the warrantless blood draws. People v. Tarr, 2022 COA 23, 511 P.3d 672.

Denial of motion to suppress results of alcohol blood test taken without consent as unlawful search and seizure affirmed. People v. Smith, 175 Colo. 212, 486 P.2d 8 (1971).

Notice through publication of statutes is sufficient. The requirements of due process in relation to the warnings under subsection (3) are satisfied by the notice which is given licensees through publication of the statutes. Vigil v. Motor Vehicle Div., 184 Colo. 142, 519 P.2d 332 (1974).

Notice given licensees through publication of express consent statute satisfies due process; licensee is presumed to know law regarding operation of motor vehicles, including consequences of refusing request for chemical testing. Dikeman v. Charnes, 739 P.2d 870 (Colo. App. 1987).

Driver was not entitled to advisement of consequences of refusing chemical test to determine blood alcohol level before he was requested by officer to submit to test. Dikeman v. Charnes, 739 P.2d 870 (Colo. App. 1987).

A person who has a license to operate a motor vehicle on the public highways is presumed to know the law regarding his use of the public highways. Vigil v. Motor Vehicle Div., 184 Colo. 142, 519 P.2d 332 (1974).

Failure to warn a driver that evidence of his refusal to take blood or breath test may be used against him at trial coupled with the subsequent use of the evidence at trial does not violate due process under the federal or state constitutions. Moreover, a refusal to take a blood or breath test is not compelled testimony entitled to protection under the state constitution. Cox v. People, 735 P.2d 153 (Colo. 1987).

Fundamental fairness does not require that officers inform suspects of the evidentiary effect of a decision whether to perform roadside sobriety maneuvers when constitutional rights or statutory consequences are not implicated by the choice. McGuire v. People, 749 P.2d 960 (Colo. 1988).

B. Purpose.

Eases administrative burden. The implied consent (now express consent) law provides the state with an easily administered, reliable method of proving intoxication in a driving under the influence case and also provides for a simple administrative remedy for revoking the driver's license of an arrested person who refuses to submit to a test. People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975).

Tests not required to prove intoxication. In prosecution for driving while under the influence of intoxicating liquor, chemical tests are neither necessary nor required to prove intoxication. People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975).

Evidence apart from blood alcohol tests may in and of itself be sufficient to establish guilt in a drunk driving prosecution. Garcia v. District Court, 197 Colo. 38, 589 P.2d 924 (1979).

Language of subsection (2)(d) negates the defendant's claim that he must be advised of the existence of the implied consent (now express consent) law and his rights thereunder, including his right to refuse to take the chemical test and his right to know the consequences thereof, before he can be charged with driving while intoxicated. People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975).

C. Prerequisites to Testing.

Due process principles do not require the state to offer a chemical test to the motorist before charging him with driving while under the influence of intoxicating liquors. People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975).

There is nothing in subsection (3) which requires that a person must be given an opportunity to take a chemical test before he can be charged with driving under the influence. People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975).

The people have no duty to give the defendant any chemical test. People v. Hedrick, 192 Colo. 37, 557 P.2d 378 (1976).

The implied consent (now express consent) law neither requires the arresting officer to request a chemical test nor does it grant the driver an independent right to a test in the absence of the arresting officer's invocation of the statute. People v. Gillett, 629 P.2d 613 (Colo. 1981).

Probable cause is required before test may be administered. This includes a test administered to an unconscious person under subsection (8). People v. Grassi, 192 P.3d 496 (Colo. App. 2008), aff'd, 2014 CO 12, 320 P.3d 332, cert. denied, 574 U.S. 1014 (2014).

As long as a detective has sufficient probable cause to arrest a defendant for one of the crimes enumerated in subsection (3), a nonconsensual blood draw is statutorily authorized. People v. Barry, 2015 COA 4, 349 P.3d 1139.

Probable cause may be established under the fellow-officer rule if two conditions are met: (1) The officer acts pursuant to a coordinated investigation, and (2) the police, as a whole, possess the information giving rise to probable cause at the time of the search or arrest. Grassi v. People, 2014 CO 12, 320 P.3d 332 cert. denied, 574 U.S. 1014 (2014).

Probable cause justifies test prior to arrest and without permission. A urine sample that is taken prior to a defendant's arrest and without his permission is not a violation of defendant's constitutional rights so long as the facts establish probable cause to make such arrest at the time the sample is taken. People v. Kokesh, 175 Colo. 206, 486 P.2d 429 (1971).

Particularly, where necessity requires immediate test. Where defendant was charged with felony of causing an injury while driving under the influence of intoxicating liquor, and necessity required an immediate breathalyzer test to prevent destruction of the evidence, held, under the circumstances a warrant was not required, nor was consent of defendant necessary under fourth amendment to United States constitution in order to administer breathalyzer test. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970).

Consent is not a prerequisite to the performance of a chemical test to determine the alcohol content of a defendant's blood when the offense charged is a felony. People v. Deadmond, 683 P.2d 763 (Colo. 1984).

Meaning of "arrest". The arrest referred to in this section constitutes detention by an officer such that the driver is in custody and obviously not free to leave of his own volition. Ayala v. Colo. Dept. of Rev., 43 Colo. App. 357, 603 P.2d 979 (1979).

Driving. Person who was in the driver's seat of an automobile which had its motor running and its parking lights on and which was located in a private parking lot was in actual physical control of the automobile and thus was driving a motor vehicle. Therefore, refusal to consent to testing violates the "express consent" provision of this section. Motor Vehicle Div. v. Warman, 763 P.2d 558 (Colo. 1988).

Person seated behind a steering wheel with the seat belt fastened with the key in the ignition turned to "on", even though the car is not running, is driving a motor vehicle. Caple v. Dept. of Rev., 804 P.2d 873 (Colo. App. 1990).

Arrest is condition precedent to blood alcohol test request. A defendant who had not been "arrested" before implementation of the implied consent (now express consent) procedure could not have his driver's license revoked for three months for failure to take a blood alcohol test because an arrest is a condition precedent to the state's request that a driver submit to a blood alcohol test. Humphrey v. Motor Vehicle Div., 674 P.2d 987 (Colo. App. 1983).

Consent is implied only if driver is arrested. Arnold v. Charnes, 41 Colo. App. 338, 589 P.2d 1373 (1978), rev'd on other grounds, 198 Colo. 362, 600 P.2d 64 (1979).

An arrest must precede any request that a driver submit to a blood alcohol test. Ayala v. Colo. Dept. of Rev., 43 Colo. App. 357, 603 P.2d 979 (1979); O'Rourke v. Motor Veh. Div., Dept. of Rev., 735 P.2d 207 (Colo. App. 1987).

A roadside sobriety test can only be administered when there is probable cause to arrest the driver for driving under the influence of, or while his ability is impaired by, intoxicating liquor or other chemical substance, or when the driver voluntarily consents to perform the test. People v. Carlson, 677 P.2d 310 (Colo. 1984).

No new probable cause and arrest are necessary at time driver is requested to provide a urine sample for drug testing; same probable cause that supported arrest on suspicion of driving under the influence of some substance is sufficient. Halter v. Dept. of Rev., 857 P.2d 535 (Colo. App. 1993).

Once probable cause exists to arrest driver on suspicion of driving under the influence and test for presence of alcohol is negative, it is reasonable to require driver to submit to testing for presence of drugs where driver continues to exhibit evidence of intoxication. Halter v. Dept. of Rev., 857 P.2d 535 (Colo. App. 1993).

An officer who administers a test provided for by subsection (2)(a)(I) may subsequently require a driver to submit to testing under subsection (2)(b)(I). People v. Fuerst, 2019 COA 2, 488 P.3d 454.

Officer is not authorized to request and to direct an arrested driver to submit to testing absent probable cause for the DUI arrest and, by implication, absent reasonable suspicion for the initial stop. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992).

Reliance on valid arrest. Officer requesting blood test can rely on information of fellow officer in determining that a valid arrest has been made for purposes of the express consent statute. Sanger v. Colo. Dept. of Rev., 736 P.2d 431 (Colo. App. 1987).

Officer may originally arrest for moving violation. There is no proscription in this section against an officer first making an arrest for a moving violation, and then, if reasonable grounds exist to believe that the person driving is also under the influence of alcohol, personally or by fellow officer, instituting the procedures under the implied consent (now express consent) act. Renck v. Motor Vehicle Div., 636 P.2d 1294 (Colo. App. 1981).

Legality of initial contact between driver and police not relevant in civil proceeding. A hearing officer or court is not required or allowed to determine in a revocation proceeding the lawfulness of the initial contact. Francen v. Dept. of Rev., 2012 COA 110, 411 P.3d 693, aff'd, 2014 CO 54, 328 P.3d 111; Hanson v. Dept. of Rev., Motor Veh. Div., 2012 COA 143, 411 P.3d 1, aff'd, 2014 CO 55, 328 P.3d 122.

Statute does not require police officers to ask for a defendant's consent prior to proceeding with a constitutionally proper, involuntary blood draw following a suspected vehicular assault. Section 18-3-205 (4)(a) allows a police officer to perform blood tests on a driver without his or her consent if the officer has probable cause to believe the driver has committed vehicular assault under the influence of alcohol or drugs. People v. Smith, 254 P.3d 1158 (Colo. 2011).

D. Testing Requirements.

A field test on a portable breath testing device given to the suspect prior to arrest did not constitute a chemical test within the meaning of the express consent statute, and so a revocation for refusal to submit to additional testing is supported. Davis v. Carroll, 782 P.2d 884 (Colo. App. 1989).

Purpose of board of health regulation. The regulation of the board of health as to taking tests under this section--outside of those designed to prevent injury to and to preserve the health of the individual--are designed for internal operating procedure and not for the defendant. People v. Hedrick, 192 Colo. 37, 557 P.2d 378 (1976).

Regulations promulgated pursuant to this section apply only to offenses charged under it and not to felonies charged under 18-3-106. People v. Acosta, 620 P.2d 55 (Colo. App. 1980); People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984).

Provisions of former subsection (3)(b)(I) (currently subsection (7)(b)(I)) regarding the foundation to admit test results apply to revocation proceedings under 42-2-122.1. Siddall v. Dept. of Rev., 843 P.2d 85 (Colo. App. 1992).

The provisions of former subsection (3)(b)(I) (currently subsection (7)(b)(I)) do not establish any minimum foundational requirements for the admissibility of test results at criminal trials or revocation hearings, but rather indicate that if the department of revenue chooses to introduce a manufacturer's or supplier's certificate of compliance for a test kit, such certificate shall constitute a sufficient evidentiary foundation. Siddall v. Dept. of Rev., 843 P.2d 85 (Colo. App. 1992); Thomas v. People, 895 P.2d 1040 (Colo. 1995) (decided under former 42-4-1202.2 as it existed prior to the 1994 recodification of title 42).

Results of breathalyzer test were admissible in DUI proceeding where prima facie showing was made that testing device was in proper working order and was properly operated by qualified person and that test was administered in substantial compliance with department of health regulations. Thomas v. People, 895 P.2d 1040 (Colo. 1995) (decided under former 42-4-1202 as it existed prior to the 1994 recodification of title 42).

Failure to provide certification documents as to breath test instruments went to weight of breath test results and not to their admissibility. Thomas v. People, 895 P.2d 1040 (Colo. 1995) (decided under former 42-4-1202 as it existed prior to the 1994 recodification of title 42).

Even when the breath test is not performed in strict compliance with board of health rules, the results of such test are admissible so long as the proponent of the evidence lays a foundation which satisfies the court that the test is reliable. People v. Bowers, 716 P.2d 471 (Colo. 1986); Thomas v. People, 895 P.2d 1040 (Colo. 1995) (decided under former 42-4-1202.2 as it existed prior to the 1994 recodification of title 42).

The "under supervision" clause in former subsection (3)(b) (currently subsection (7)(b)) is read as referring to any "normal duties" and not as a requirement that the supervision be present at the time the technician withdraws the blood. People v. Mari, 187 Colo. 85, 528 P.2d 917 (1974).

Under statute's plain language, a paramedic need not be supervised by a physician or nurse to withdraw blood. The statute describes five categories of individuals authorized to withdraw blood: physicians, nurses, paramedics, emergency medical service providers, and other persons "whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse". To apply the "under the supervision of a physician or registered nurse" requirement to any of the categories of individuals other than the last category would lead to an absurd result requiring physicians and nurses to be supervised. Neppl v. Dept. of Rev., 2019 COA 29, 439 P.3d 76.

Former subsection (3)(b) (currently subsection (7)(b)) is not read to require on-the-spot supervision. On the contrary, if one's normal duties as a medical technologist include withdrawing blood samples while under the supervision of a physician or registered nurse, he qualified notwithstanding the fact that supervision was not present at this time. People v. Mari, 187 Colo. 85, 528 P.2d 917 (1974).

Effect of failure to apprise driver of substance of former subsection (3)(b) (currently subsection (7)(b)) provision. The provision of this section limiting the withdrawal of blood to qualified medical personnel is not of sufficient importance that an arresting officer's failure to apprise a driver of its substance immunizes the driver from the consequences of his refusal to submit to any chemical sobriety testing. Shiarla v. State, 40 Colo. App. 320, 576 P.2d 193 (1978).

Test to be taken with reasonable promptness. In order to obtain a valid test it is necessary that it be accomplished with reasonable promptness before the evidence dissipates. People v. Dee, 638 P.2d 749 (Colo. 1981).

Where delay in consenting to test. While a motorist has no right under the statute to confer with counsel prior to deciding whether he will consent to a test, where he is permitted to do so, thereafter consents to the test, and the officer is available to see that the test is administered, the primary purpose of the statute is fulfilled unless the delay will materially affect the result of the test. Zahtila v. Motor Vehicle Div., 39 Colo. App. 8, 560 P.2d 847 (1977).

Submitting to a chemical test six hours after an arrest is not sufficient compliance with this section. Cooper v. Dir. of Dept. of Rev., 42 Colo. App. 109, 593 P.2d 1382 (1979).

Burden on driver to tell officer which test driver is willing to take. When an arresting officer offers a driver his statutorily required choice between blood or breath testing, burden is on the driver to tell officer which test he is willing to take. Shumate v. Dept. of Rev., 781 P.2d 181 (Colo. App. 1989).

Officer must comply with driver's request for blood test. Former subsection (3) (currently subsection (7)) requires that when an arresting officer invokes the sanctions of the implied consent (now express consent) law by requesting a driver to submit to chemical testing, the officer has a corresponding duty to comply with the driver's request for a blood test. People v. Gillett, 629 P.2d 613 (Colo. 1981).

Inability of officer to accommodate driver's request for blood test does not constitute good cause. An officer's denial of a driver's right to select a blood test to measure sobriety because the ambulance service retained by the sheriff's office to draw blood was unavailable was not a denial for good cause under the express consent law. Riley v. People, 104 P.3d 218 (Colo. 2004).

Weather-caused delays and high-call volume, however, do not require the case to be dismissed. The police department had adequate protocol for administering requested blood test, but arresting office could not obtain the test within the required two-hour period because of extraordinary circumstances beyond his control. The court, therefore, abused its discretion by dismissing the charges. Turbyne v. People, 151 P.3d 563 (Colo. 2007).

Prosecution must present evidence that extraordinary or "non-routine" circumstances prevented medical personnel from responding to law enforcement's request for a blood test. In the absence of such evidence, defendant's right to receive a blood test violated. People v. Null, 233 P.3d 670 (Colo. 2010).

Trial court acted within its discretion when it suppressed evidence of defendant's refusal to take a breath test after medical personnel failed to respond to administer a blood test and when it dismissed the DUI charge. People v. Null, 233 P.3d 670 (Colo. 2010).

"[M]edical treatment" in subsection (2)(a)(I) is an affirmative event involving the application of medical expertise. An examination by a doctor and a nurse would meet this definition. Brodak v. Visconti, 165 P.3d 896 (Colo. App. 2007).

Because driver was receiving medical treatment at a hospital where breath testing was not available, arresting officer properly required him to take a blood test. Brodak v. Visconti, 165 P.3d 896 (Colo. App. 2007).

Arresting officer, not driver, has right to choose which test will be taken to determine the presence of drugs. Stanger v. Dept. of Rev., 780 P.2d 64 (Colo. App. 1989).

This section requires taking of test, not merely consenting to it and then partially taking the test, and a test that is sabotaged by the actions of the person tested is of the same legal effect as no test at all. Baker v. State Dept. of Rev., 42 Colo. App. 133, 593 P.2d 1384 (1979).

Under express consent provisions of former subsection (3) (currently subsection (7)), driver's failure to provide urine sample for drug test manifested noncooperation and unwillingness to take the test where more than two hours had elapsed since sample was requested, nearly four hours had elapsed between traffic stop and notice of revocation, driver was given several drinks of water, and driver presented no evidence of a medical condition which would affect his ability to provide requisite sample. Halter v. Dept. of Rev., 857 P.2d 535 (Colo. App. 1993).

Right of refusal of test subject to sanction of license suspension. Under the implied consent statute, the general assembly granted to the driver the right to refuse to take the chemical test, which refusal had to be honored by the arresting officer. Such right of refusal, of course, was subject to the sanction of suspension of one's operator's license. People v. Sanchez, 173 Colo. 188, 476 P.2d 980, (1970).

Test results not admissible and revocation vacated. Verification on notice form used in driver's license revocation proceeding under express consent statute did not by its terms extend to other documents required to be submitted in arresting officer's report, and thus where document purporting to identify person who drew defendant's blood for blood test was not itself verified, and where no testimony was presented which identified that person as one authorized by regulation to perform test, the test results were inadmissible and the trial court did not err in vacating order revoking driver's license. Forvilly v. State Dept. of Rev., 730 P.2d 888 (Colo. App. 1986).

Lack of evidence concerning police officer's certification to conduct an intoxilyzer test does not automatically invalidate result of that test, notwithstanding fact that result of independent test differed from result of test conducted by police officer. Colo. Dept. of Rev. v. McBroom, 753 P.2d 239 (Colo. 1988).

Administration of test held not to violate defendant's dignity. People v. Dee, 638 P.2d 749 (Colo. 1981).

Driver whose license was revoked for failure to provide urine sample for drug test was not denied equal protection under this section which does not provide for alternative types of drug testing in the event of physical impairment. Halter v. Dept. of Rev., 857 P.2d 535 (Colo. App. 1993).

Normally, court must find consent given before test results admitted over defendant's objection. Where an objection is made by a defendant to the introduction into evidence of the results of a blood alcohol test on the ground that the test was taken without his consent, the trial court, after hearing, must make a specific and affirmative finding that such consent was given before this line of testimony may with propriety be submitted to the jury for its consideration. Compton v. People, 166 Colo. 419, 444 P.2d 263 (1968).

Under express consent provisions of subsection (7), when a driver makes the required election between testing options, an arresting officer has a duty to implement the method initially elected. Lahey v. Dept. of Rev., 881 P.2d 458 (Colo. App. 1994).

A driver's election between testing options is irrevocable and the arresting officer lacks discretion to allow an arrested driver to change the testing option elected. Lahey v. Dept. of Rev., 881 P.2d 458 (Colo. App. 1994); People v. Shinaut, 940 P.2d 380 (Colo. 1997).

Erroneous accommodation of defendant's request to change type of test administered does not warrant the sanction of excluding the test results. People v. Shinaut, 940 P.2d 380 (Colo. 1997).

E. Multiple Samples.

There are no Colorado statutes which require that two samples be taken or that a sample be preserved. People v. Hedrick, 192 Colo. 37, 557 P.2d 378 (1976).

Single breath sample insufficient reason to suppress test results. Suppression of the test results is not required where only one breath sample was taken from each of the defendants. People v. Riggs, 635 P.2d 556 (Colo. 1981).

There is no duty on the state to give to the defendant any more than the results of the test. People v. Hedrick, 192 Colo. 37, 557 P.2d 378 (1976).

Test results admissible. Where there is a failure to prove that the evidence is preservable or that there was any prejudice to defendant by failure to have available to him a breath sample, the wider interests of society favor the admissibility of the test results at trial. People v. Hedrick, 192 Colo. 37, 557 P.2d 378 (1976).

F. Refusal to Take Test.

It is driver's external manifestations of unwillingness or outright refusal to take chemical test for alcohol which are relevant under express consent statute, not driver's state of mind or later recollection of events. Boom v. Charnes, 739 P.2d 868 (Colo. App. 1987), rev'd on other grounds, 766 P.2d 665 (Colo. 1988); Dikeman v. Charnes, 739 P.2d 870 (Colo. App. 1987).

Driver cannot refuse to take a chemical test of breath or blood merely because he or she believes the testing equipment is unreliable or not working properly. Long v. Colo. Dept. of Rev., 2012 COA 130, 296 P.3d 329.

Officer is not required to ascertain driver's subjective state of mind in determining whether driver consents to chemical test for alcohol; objective manifestations of driver are enough to constitute refusal. Colgan v. State Dept. of Rev., 623 P.2d 871 (Colo. 1981); Boom v. Charnes, 739 P.2d 868 (Colo. App. 1987), rev'd on other grounds, 766 P.2d 665 (Colo. 1988).

Driver's actions not to be lightly construed as refusal. An arresting officer should not lightly construe words and actions of a driver to constitute a refusal to be tested. Renck v. Motor Vehicle Div., 636 P.2d 1294 (Colo. App. 1981).

In deciding whether there was a refusal to submit to a chemical test, the trier of fact should consider the driver's words and other manifestations of willingness or unwillingness to take the test. Dolan v. Rust, 195 Colo. 173, 576 P.2d 560 (1978); Hess v. Tice, 43 Colo. App. 47, 598 P.2d 536 (1979).

It is the driver's external manifestations of unwillingness or his outright refusal to take the test which are relevant, and not the driver's state of mind or his later recollection of events. Dolan v. Rust, 195 Colo. 173, 576 P.2d 560 (1978); Hess v. Tice, 43 Colo. App. 47, 598 P.2d 536 (1979).

If the district court makes a pretrial finding of refusal to take a chemical test for evidentiary purposes, the ruling must be based on the law of refusal that has developed in the context of administrative proceedings revoking an individual's driver's license due to refusal to take a chemical test. People v. Montoya, 2022 COA 55M, 516 P.3d 970.

Automobile driver's request to speak to attorney before taking chemical test to determine blood alcohol level constituted refusal to take test as matter of law. Dikeman v. Charnes, 739 P.2d 870 (Colo. App. 1987).

Inability to decide to submit to test constitutes refusal. An inability to decide to submit to a test, after being fully advised that Miranda rights do not apply, will constitute a refusal. Stephens v. State Dept. of Rev., 671 P.2d 1348 (Colo. App. 1983).

It was reasonable for arresting officer to take driver's silence to be a refusal of testing where driver had not been unable to speak and had answered other questions but failed to speak only in response to the request to take a blood test. Poe v. Dept. of Rev., 859 P.2d 906 (Colo. App. 1993).

Arresting officer not required to compel performance of involuntary blood test where driver had not been unable to speak and had answered other questions but failed to speak only in response to the request to take a test, making it reasonable for officer to take driver's silence to be a refusal of testing. Poe v. Dept. of Rev., 859 P.2d 906 (Colo. App. 1993).

Breath test must be offered where blood test refused. That driver appeared too intoxicated to take breath test after refusing blood test did not amount to refusal to take breath test. Officer was required to offer breath test despite his conclusion that defendant was not physically able to perform test due to intoxication. Sedlmayer v. Charnes, 767 P.2d 754 (Colo. App. 1988).

Breath test suppressed as evidence as a result of officer's erroneous and coercive statement that defendant could lose his license for not taking breath test. After being unable to comply with defendant's request for a blood test, the arresting officer warned that the defendant could lose his license for failure to take a breath test. Turbyne v. People, 151 P.3d 563 (Colo. 2007).

Driver's initial refusal to take the test is sufficient grounds upon which to revoke her license. Rogers v. Charnes, 656 P.2d 1322 (Colo. App. 1982).

Revocation mandatory. Creech v. State Dept. of Rev., 190 Colo. 174, 544 P.2d 633 (1976).

Subsection (2)(a)(III), unlike subsection (2)(a)(I), does not impose any condition on an officer's testing request; instead, it governs a driver's duty to cooperate. It does not provide a driver need only cooperate with requests made within two hours of driving. Rather, it requires that, if a law enforcement officer requests a test, the suspected drunk driver must cooperate with the request such that the sample of blood or breath can be obtained within two hours of the person's driving. Stumpf v. Colo. Dept. of Rev., 231 P.3d 1 (Colo. App. 2009).

Subsection (2)(a)(III) requires that drivers provide timely cooperation within a two-hour period if possible, but does not excuse their refusal beyond that period. This does not mean, however, that such requests can never give rise to revocation. Instead, requests made more than two hours after driving remain subject to the reasonable time limitation standard. Stumpf v. Colo. Dept. of Rev., 231 P.3d 1 (Colo. App. 2009).

Hearing officer properly found testing request to have been made within a reasonable time. The request was made and refused by the driver less than three and one-half hours after person's driving. A blood test conducted three and one-half hours after driving is not incapable of yielding potentially relevant evidence. Stumpf v. Colo. Dept. of Rev., 231 P.3d 1 (Colo. App. 2009).

The two-hour standard does not apply to a refusal to take a test. The refusal to take a blood alcohol test is an independent cause for revoking driver's license. Therefore, so long as the request is within a reasonable time, a refusal to take the test may result in loss of a driver's license. Stumpf v. Colo. Dept. of Rev., 231 P.3d 1 (Colo. App. 2009).

A driver's refusal to submit to a test pursuant to the implied consent (now express consent) law is not irrevocable and the driver may reconsider his decision. Zahtila v. Motor Vehicle Div., 39 Colo. App. 8, 560 P.2d 847 (1977).

Although a driver's decision as to whether to take blood or breath alcohol test is irrevocable, refusing to take a test is revocable. Subject to limits, a driver may, after initially refusing to take a test, agree to take a blood alcohol test within two hours of driving. People v. Montoya, 2022 COA 55M, 516 P.3d 970.

But licensee must inform officer of reconsideration and consent. Although an attorney informs a police officer that she has advised her client to submit to a blood-alcohol test, unless the licensee informs the officer of his consent to the test, a prior refusal to take the test is grounds for the revocation of his license. McCampbell v. Charnes, 626 P.2d 762 (Colo. App. 1981).

After a driver has refused to submit to a test, recantation must be made to the arresting officer or other law enforcement officer in sufficient time to obtain a sample within two hours of the person's driving. The arresting officer is not obliged to wait with the suspect for two hours in case the suspect may wish to recant the refusal. If the officer has returned to duty, the refusal stands. Gallion v. Colo. Dept. of Rev., 155 P.3d 539 (Colo. App. 2006), aff'd, 171 P.3d 217 (Colo. 2007).

When licensee initially agreed to submit to blood test but then refused test, it became obligation of licensee to tell officer he was willing to consent to an alternative test. Gonzales v. State Dept. of Rev., 728 P.2d 754 (Colo. App. 1986).

A motor vehicle operator who has unequivocally refused a test may no longer retract the refusal after the law enforcement officer has completed the duties prescribed by statute to deal with the refusal. Schulte v. Colo. Dept. of Rev., 2018 COA 140, 488 P.3d 419.

Service of the notice of revocation can be sufficient for an officer to disengage from requesting or directing a chemical test but it is not a necessary predicate to disengaging. Schulte v. Colo. Dept. of Rev., 2018 COA 140, 488 P.3d 419.

Court concludes that there was not a refusal justifying revocation of license when driver retracted refusal to take blood or breath test within two and one-half hours after driving. Pierson v. Colo. Dept. of Rev., 923 P.2d 371 (Colo. App. 1996).

Even absent other driving violations, an investigatory stop is permissible when a police officer has a reasonable suspicion that the driver is committing or has committed a drunk driving offense. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992).

Reasonable suspicion justifying initial stop was furnished by nonverbal signal of gas station clerk who had called to report intoxicated customer preparing to drive away. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992).

Motorist's refusal to submit to blood alcohol test and breath test was not authorized by statute and was not excused by police's failure to establish statutory qualifications of blood technician to driver's satisfaction. Malveaux v. Colo. Dept. of Rev., 727 P.2d 875 (Colo. App. 1986).

In the case of a vehicular assault, in order for an officer to require a test, the motorist must first be given the opportunity to refuse consent to the test. People v. Maclaren, 251 P.3d 578 (Colo. App. 2010).

In the case of a vehicular assault, failure of an officer to obtain consent prior to subjecting a motorist to a test under this section does not require suppression of the test result or dismissal of the case. Court has broad discretion to suppress evidence or dismiss the case as a sanction for improper police conduct. People v. Maclaren, 251 P.3d 578 (Colo. App. 2010).

Revocation of license upheld. When plaintiff refused to sign consent form required by hospital, he refused to submit to testing within the meaning of the express consent statute. Stahl v. Dept. of Rev., Motor Vehicle Div., 921 P.2d 74 (Colo. App. 1996).

Motorist who had agreed to take blood alcohol test until confronted with hospital release form which did not conform with subsection (3)(b) requirements was not subject to having license revoked based solely on his not signing release form. Connolly v. Dept. of Rev., 739 P.2d 927 (Colo. App. 1987).

Refusal is prerequisite for revocation proceeding. A refusal to submit to an appropriate chemical analysis test to determine the alcohol content of breath or blood is the prerequisite for the initiation of revocation proceedings, and such proceedings are civil in nature. DuPuis v. Charnes, 668 P.2d 1 (Colo. 1983).

Finality of order of revocation. An order of revocation issued at the conclusion of a hearing is final. Judicial review must be perfected within thirty days after the date of that hearing as specified in 42-2-127. If an appeal is not perfected within the statutory time limit, dismissal is mandated. Houston v. Dept. of Rev., 699 P.2d 15 (Colo. App. 1985).