Often, during my DUI consultations my clients will ask me “Which test should I have taken?” after they have been charged with drunk driving. This isn’t always an easy answer. I think there are pros and cons to each test, or to refusing to cooperate with a chemical test. Usually, we are playing Monday morning quarterback, as the decision has already been made at this point. I thought it might be a worthwhile blog post to discuss the options and some of the benefits or drawbacks of each option.
If you are ever stopped and suspected of DUI, you may be asked to submit to a chemical test to measure your blood alcohol content (BAC). Your options in Colorado boil down to a breath test, a blood test, or refusing the test altogether. Each decision has its own pros and cons. This article will explore these options to help you make an informed decision should you ever find yourself in this unfortunate predicament.
It is probably a topic for an additional blog, but the next question I am always asked is, “Should I do the roadside field sobriety tests?” The answer is almost always “No, I’d recommend against it. It is probably in your best interest not to give law enforcement any additional evidence that they will certainly attempt to use against you later.” Remember, in Colorado these field sobriety tests are VOLUNTARY field tests. In my career I have never had someone regret not doing a test, but I have had many people wish they hadn’t done them. These include tests like the Horizontal Gaze Nystagmus (HGN), one-leg stand, or the walk and turn.
But let’s get back to the topic at hand. Which test should you choose? For the discussion below, let’s assume you’ve had a few to drink, and are worried you’re going to be above the limit.
Breath Tests
Providing a sample of your breath is one of the two commonly used methods to measure BAC in Colorado. It involves blowing into a breathalyzer device that measures your blood alcohol. In Colorado the device currently used is the Intoxilyzer 9000.
Pros of Choosing a Breath Test
One of the main advantages of a breath test is that it provides the quickest results. This can be beneficial if you believe your BAC is close to or below the legal limit of 0.05%, (or a .08% for a DUI) as you will know right away what the outcome is.
Less Invasive: Unlike a blood test, a breath test is non-invasive and quick. You just blow into a straw attached to the Intoxilyzer, instead of going to the hospital and having a nurse or tech draw your blood.
Challenging the Results: Breathalyzer results can sometimes be challenged in court due to factors such as improper calibration of the device, the presence of mouth alcohol (residual alcohol in the mouth), or certain medical conditions that can affect the accuracy of the reading. The Intoxilyzer 9000 has been known to have issues with interferants in breath such as ketones, smoke, or artificially raised results for diabetics.
Timing: In some instances, the timing of a breath test can be to your advantage. Law enforcement has two hours from the time of driving to complete your test for express consent purposes. The time it takes police to transport you, and then prepare for the test, including a mandatory 20-minute observation period can delay the timing of the test to sometimes put it outside the 2-hour window. It may also provide time to allow your BAC to go down slightly. In some cases, even a little bit lower BAC can make all the difference.
Cons of Choosing a Breath Test
Accuracy Issues: Breath tests are generally considered less accurate than blood tests. Factors such as the device’s calibration, the officer’s training, and the individual’s physiology can all affect the results. This can also be a plus when fighting the results at trial.
Retest availability: With a blood test, the State is required to take two samples of your blood. One is for law enforcement testing and evidence. The other is for you, or your Colorado DUI lawyer to retest a certified lab. A retest can be very important as we’ll cover below. A breath test is effervescent, and a second sample is not retained. You are therefore unable to retest a breath sample from the Intoxilyzer 9000.
Environmental Interference: External factors like exposure to certain chemicals, recent consumption of food or beverages, health conditions, and even certain types of mouthwash can skew the results of a breath test. This can be a significant factor in showing an elevated BAC in some conditions.
Blood Tests
A blood test involves drawing two samples of your blood to measure the amount of alcohol in your bloodstream via testing by a gas chromatography-mass spectrometry machine (GC/MS) This instrument is typically considered the most accurate method for determining BAC.
Pros of Choosing a Blood Test
Accuracy: Blood tests are generally considered the most accurate method for measuring BAC. They provide a precise measurement of the amount of alcohol in your bloodstream at the time the sample is taken. This can also be seen as a negative at trial when the DA is trying to argue the accuracy of your test results.
Stronger Evidence: Because of their accuracy, blood tests can provide stronger evidence in court, which can be beneficial if you believe you are under the legal limit or if there are other substances in your system that you need to account for. If you believe you were drugged, for example, a blood test allows for us to test for other substances. Unfortunately, it isn’t uncommon for people to be drugged with GHB, roofies, or other “date rape” (note: I hate that term) type drugs. If you believe that someone spiked your drink, a blood test will allow us to perform a more extensive blood panel to detect other substances
No Immediate Results: Blood test results take time to process, which means you won’t receive an immediate BAC reading. This delay can sometimes work in your favor, giving you time to consult with a Colorado Springs DUI defense attorney before the results are available to the DA. As of the writing of this blog in 2024, blood tests from Colorado Bureau of investigation (CBI) are taking about 3-4 months to come back. We can usually get our retests back in a few weeks.
Chain of Custody Issues: Blood samples must be handled carefully to maintain their integrity. Any errors in the chain of custody or storage can result in contamination or inaccurate results, which could be helpful to your case. It may benefit you as well if the DA has difficulty arranging for those responsible for testing your blood to appear in court to testify in your case. Without the tester(s), they may have difficulty admitting the blood test results/evidence.
Cons of Choosing a Blood Test
Invasive: Blood tests are invasive and can be uncomfortable or even painful. Some individuals have a fear of needles or medical procedures, making this option a difficult one to choose.
Ability to detect drugs: If you have partaken in another substance (illegal or prescription drugs), a blood test has the ability to be tested for other drugs. If you take a breath test, it won’t be able to detect the other substances, or the amount consumed. For example, if you have cocaine in your system a breath test won’t reveal that, but a blood test can if law enforcement runs the proper panels to test for it.
Processing Time: The delay in receiving results can also be a disadvantage if you are confident, you are below the legal limit and hope to dispose of your case more quickly. It has become incredibly common to have to set over a court date to a later time because we are waiting blood test results.
Refusal
In Colorado, you have the right to refuse to take a chemical test. However, this decision comes with potentially significant consequences at the DMV and in court.
Pros of Refusing the Test
No Immediate Evidence: By refusing the test, you prevent the immediate collection of evidence that could be used against you in court. This might be advantageous if you believe your BAC is over the legal limit. If you know you are going to have a super high BAC, in excess of a .20%, this could save you from mandatory jail time.
Less Evidence: It is very common for juries to focus on chemical tests, and similarly with other forensic evidence, to determine guilt. The fact that there is no chemical test might be an issue at trial where there isn’t sufficient circumstantial evidence to convince a jury of your guilt.
Cons of Refusing the Test
DMV and license Consequences: Refusing a chemical test in Colorado results in additional consequences to your license under the state’s Express Consent Law. You are entitled to a hearing, but if the revocation is upheld, you are facing a one-year license revocation. Keep in mind, you may be eligible for early reinstatement after 2 months with an interlock and other conditions. This is independent of whether you are ultimately convicted of a DUI.
No immediate eligibility for reinstatement: As of 2023, on breath and blood tests that are above a .08 BAC that result in revocation, there is no waiting period to reinstate your license. Refusals, however, require a 2 month no driving period before you are eligible to reinstate with an interlock, SR-22, and enrollment in Alcohol education/therapy.
Evidence of Guilt: Refusal to take a chemical test can still be used as evidence against you in court. The prosecution may argue that your refusal indicates consciousness of guilt, which can be damaging to your defense. Like many of the examples used above, this can cut both wats.
Ignition Interlock Device Requirement: If you refuse a chemical test and your license is revoked through the DMV’s express consent hearing process, you are required to install an ignition interlock device (IID) in your vehicle. Interlocks are expensive, embarrassing, and frankly, a pain the butt. Two years of interlock is mandatory on refusal cases when a revocation is entered.
Conclusion
This post is not intended to give direction on what test you should take, or whether you should take one at all. I do hope it was informative and gives you some ideas on what to expect based on the decision you make if you are ever facing a drunk driving charge. It is a complex and difficult decision to make at 2 A.M., when you’re in handcuffs, and maybe not fully sober. Each of the options have its own set of pros and cons, and the best choice for you depend on many individual specifics of your case. I wish there was an easy one-size-fits-all answer, but there are too many variables when making the decision.
I will say, if you find yourself ever in a situation where you are asked to submit to a chemical test, hopefully this article gave you some insight on your rights and the potential consequences of your decision.
If you are charged with a DUI, or DWAI in Colorado Springs, consulting with an experienced DUI attorney can provide guidance and help you through the legal process. The choices you make in these critical moments can have a long-lasting impact on your life, so it is important to stay informed. If you have questions or concerns about your DUI case, give us a call. We’re happy to help!