Colorado’s Expressed Consent Law: What to Know

By Daniel Pollitt, Associate, at 2nd-Chair

Anyone who ever drives in the state of Colorado should be familiar with Colorado’s “expressed consent” law.

By statute, anyone who drives in Colorado has, by the act of driving, given their “expressed consent” to a breath or blood test at the request of a police officer who has probable cause to believe the driver was driving while intoxicated.[1] Drivers must cooperate with this testing process such that the test can be completed within two hours of driving.[2]

These two types of chemical tests are different from “preliminary breath tests,” or “PBTs,” which are administered roadside with handheld breathalyzers. Drivers over the age of twenty-one are not required to take PBTs, and the results of a PBT or a driver’s refusal to take a PBT are not admissible in court. Drivers under twenty-one may be required to take a PBT if a police officer reasonably suspects the driver has consumed alcohol.[3]

Drivers who are not unconscious are permitted to revoke this statutory consent and refuse to submit to chemical testing.[4] However, a driver who refuses to take a chemical test when asked, or fails to cooperate in the testing process, will lose his or her driver’s license through DMV administrative proceedings.[5] In criminal proceedings, a driver’s refusal to submit to testing is generally admissible as circumstantial evidence that the driver knew a chemical test would produce incriminating evidence.[6]

Drivers normally have the option of choosing between a blood or breath test, except in specifically enumerated situations and when there are “extraordinary circumstances” that prevent a specific type of testing, such as when mask mandates during the early stages of the COVID-19 Pandemic made breath tests impracticable.[7]

Surprisingly, despite the fact that drivers can typically choose which type of test to take, police officers are under no obligation to inform drivers of this choice.[8] Similarly, police officers are also not required to advise drivers of the consequences of a refusal.[9]

 Once a driver selects a particular type of test, the driver is generally not allowed to change this selection.[10] However, a driver who initially refuses to submit to testing is permitted to subsequently change his or her mind and agree to testing, so long as the recantation is sufficiently timely to allow for the chemical test to be completed within the two-hour window and occurred while the police officer was still engaged in the process of requesting and directing the completion of the test.[11]

[1] § 42-4-1301.1(2)(a)(I), C.R.S.; People v. Montoya, 546 P.3d 605, 612 (Colo. 2024).

[2] § 42-4-1301.1(2)(a)(III).

[3] § 42-4-1301(6)(i)(I)-(III).

[4] Montoya, 546 P.3d at 612.

[5] § 42-2-126(3)(c)(I).

[6] Montoya, 546 P.3d at 612-13.

[7] § 42-4-1301.1(2)(a)(I), (a)(II), (a.5)(I), (a.5)(IV)(A)-(C); see People v. Young, 546 P.3d 625, 630-31 (Colo. App. 2024).

[8] Young, 546 P.3d at 630-31.

[9] See, e.g., Brewer v. Department of Revenue, 720 P.2d 564, 569-70 (Colo. 1986); Long v. Department of Revenue, 296 P.3d 329, 336-37 (Colo. App. 2012).

[10] § 42-4-1301.1(2)(a)(II); (a.5)(II).

[11] Montoya, 546 P.3d at 613.