Colorado's rule on refusing a breathalyzer turns on a feature the national template does not capture: Refusal generally results in a one-year administrative revocation for a first offense (longer with priors) through the Colorado DMV, with a hearing right if timely requested. Refusal can be a sentencing aggravator and is treated seriously in Colorado DUI practice. Birchfield allows criminal penalties for breath refusal; blood draws for criminal punishment ordinarily require a warrant. The controlling authority is Colo. Rev. Stat. § 42-4-1301.1. Colorado's express-consent statute requires a driver arrested for DUI/DWAI to take a breath or blood test chosen according to statutory rules. Officers must provide the express-consent advisement before requesting the test.
Key takeaways
- Primary authority: Colo. Rev. Stat. § 42-4-1301.1.
- Administrative hit: Refusal generally results in a one-year administrative revocation for a first offense (longer with priors) through the Colorado DMV, with a hearing right if timely requested.
- Criminal exposure: Refusal can be a sentencing aggravator and is treated seriously in Colorado DUI practice.
- Evidence: Refusal is admissible at trial and may be used to explain the absence of a BAC result.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Worked example under Colorado law
The illustration below uses only rules already stated for Colorado. It is a research hypothetical, not a prediction of what a court will do.
A driver is arrested for DUI in Colorado and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under Colo. Rev. Stat. § 42-4-1301.1: Refusal generally results in a one-year administrative revocation for a first offense (longer with priors) through the Colorado DMV, with a hearing right if timely requested.
- Separate that track from the criminal case: Refusal can be a sentencing aggravator and is treated seriously in Colorado DUI practice. Birchfield allows criminal penalties for breath refusal; blood draws for criminal punishment ordinarily require a warrant.
- Ask whether the refusal can be argued to the jury: Refusal is admissible at trial and may be used to explain the absence of a BAC result.
- If the request is for blood rather than breath, apply the warrant rule: Colorado often designates breath for alcohol and blood for drugs; if the designated test is refused, officers may seek a warrant for blood, especially in crash cases.
In Colorado the refusal question is answered first by Colo. Rev. Stat. § 42-4-1301.1, then by the administrative deadline and the criminal case.
Implied consent in Colorado
Colorado's express-consent statute requires a driver arrested for DUI/DWAI to take a breath or blood test chosen according to statutory rules. Officers must provide the express-consent advisement before requesting the test.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in Colorado appellate opinions.
License suspension and administrative hearings
Refusal generally results in a one-year administrative revocation for a first offense (longer with priors) through the Colorado DMV, with a hearing right if timely requested.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
Criminal consequences of refusal
Refusal can be a sentencing aggravator and is treated seriously in Colorado DUI practice. Birchfield allows criminal penalties for breath refusal; blood draws for criminal punishment ordinarily require a warrant.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. Colorado statutes and case law implement those federal baselines with local detail.
Can refusal be used as evidence?
Refusal is admissible at trial and may be used to explain the absence of a BAC result.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search Colorado opinions for “refusal” and “implied consent.”
Breath tests versus blood tests
Colorado often designates breath for alcohol and blood for drugs; if the designated test is refused, officers may seek a warrant for blood, especially in crash cases.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research Colorado opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Colorado
The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Oliver Benton HYDE, Defendant-Appellee
…g convictions under the new laws, *966states began to enact implied consent laws designed to encourage drivers to submit to blood-alcohol tests. See Comment, The Theory and Practice of Implied Consent in Colorado, 47 U. Colo. L. Rev. 723, 724 (1976); Colo. Legis. Council, Research Pub. No. 123, Highway Safety in Colorado 43 (1966) (“Advocates of implied consent argue that a muc…
The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Oliver Benton HYDE, Defendant-Appellee is worth reading on Colorado implied consent / breathalyzer refusal because the court put the point in its own words: "See Comment, The Theory and Practice of Implied Consent in Colorado, 47 U. Colo. L. Rev. 723, 724 (1976); Colo. Legis. Council, Research Pub. No." Use that passage as the starting point, then read the facts that precede it.
Timothy J. DeSCALA, Plaintiff-Appellant v. the MOTOR VEHICLE DIVISION OF the DEPARTMENT OF REVENUE, State of
…e for refusing to submit to a chemical test pursuant to the implied consent statute, section 42-4-1202(3), C.R.S.1973 & 1982 Supp. He claims that the implied consent statute violates equal protection of the laws 1 and, alternatively, that the district court applied an inappropriate standard of judicial review in affirming the order of revocation. Finding no error, we affirm the…
Timothy J. DeSCALA, Plaintiff-Appellant v. the MOTOR VEHICLE DIVISION OF the DEPARTMENT OF REVENUE, State of is worth reading on Colorado implied consent / breathalyzer refusal because the court put the point in its own words: "C.R.S.1973 & 1982 Supp. He claims that the implied consent statute violates equal protection of the laws 1 and, alternatively, that the district court applied an inappropriate standard of judicial review in affirming the order of revocation." Use that passage as the starting point, then read the facts that precede it.
The PEOPLE of the State of Colorado, Petitioner, v. Jamie Lee GILLETT, Regina Maye Denolf, and Kenneth Phillip Ross
…fficer advised the defendant of his or her rights under the implied consent law, section 42-4-1202(3), C.R.S.1973, and requested the defendant to submit to chemical testing, but when the defendant then requested a blood test the officer did not comply with that request. The county court concluded that the actions of the arresting officers violated due process of law. The distri…
On implied consent / breathalyzer refusal, The PEOPLE of the State of Colorado, Petitioner, v. Jamie Lee GILLETT, Regina Maye Denolf, and Kenneth Phillip Ross speaks to the Colorado dispute in this passage: "C.R.S.1973, and requested the defendant to submit to chemical testing, but when the defendant then requested a blood test the officer did not comply with that request. The county court concluded that the actions of the arresting officers violated due process of law." The surrounding opinion shows how the court applied that language to the record.
The People of the State of Colorado v. Jimmy Billy Sanchez
The People of the State of Colorado v. Jimmy Billy Sanchez, 173 Colo. 188 (1970)
…the police, he was advised of his rights under the Colorado implied consent law, 1967 Perm. Supp., C.R.S. 1963, 13-5-30(3) (a),(b),(c). A written advisement form entitled “Advisement Pursuant to Implied Consent Law of the State of Colorado” was read to him and he acknowledged receiving a copy of the advisement. Thereupon, defendant consented in writing to undergo a breathalyzer…
Colorado opinions such as The People of the State of Colorado v. Jimmy Billy Sanchez are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Colorado implied consent law, 1967 Perm. Supp., C.R.S. 1963, 13-5-30(3) (a),(b),(c). A written advisement form entitled “Advisement Pursuant to Implied Consent Law of the State of Colorado” was read to him and he acknowledged receiving a copy of the advisement." That is the language to brief; the rest of the decision supplies the procedural posture.
Robert Tilford COLGAN v. STATE of Colorado, DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, and Alan N. Charnes, its
…ing officer under section 42-4-1202(3)(e), C.R.S. 1973 (the implied consent law).1 We affirm. On the evening of February 24, 1976, a state highway patrol officer (the officer) pulled his car to the right shoulder of a highway south of Durango to avoid colliding with the appellant’s vehicle as it passed a pick-up truck. The officer turned, pursued the appellant, and stopped him…
Practitioners open Robert Tilford COLGAN v. STATE of Colorado, DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, and Alan N. Charnes, its when Colorado implied consent / breathalyzer refusal turns on the distinction in this sentence: "C.R.S. 1973 (the implied consent law).1 We affirm. On the evening of February 24, 1976, a state highway patrol officer (the officer) pulled his car to the right shoulder of a highway south of Durango to avoid colliding with the appellant’s vehicle as it passed a pick-up truck." Do not lift it out of the facts the court was deciding.
Robert Lee DAVIS, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Defendant-Appellee
…and in writing of his rights and responsibilities under the implied consent law, section 42-4-1202(3), C.R.S. 1973 & 1979 Supp., 2 and requested a chemical sobriety test. The appellant stated that he would submit to a urine test only. The lack of any local facility for the chemical testing of urine made that test unavailable and the patrolman so advised the appellant. The offic…
Robert Lee DAVIS, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Defendant-Appellee is worth reading on Colorado implied consent / breathalyzer refusal because the court put the point in its own words: "C.R.S. 1973 & 1979 Supp., 2 and requested a chemical sobriety test. The appellant stated that he would submit to a urine test only. The lack of any local facility for the chemical testing of urine made that test unavailable and the patrolman so advised the appellant." Use that passage as the starting point, then read the facts that precede it.
Baker v. STATE DEPT. OF REVENUE, MVD
Baker v. STATE DEPT. OF REVENUE, MVD, 593 P.2d 1384 (1979)
…ense for a period of six months under the provisions of the implied consent statute, § 42-4-1202(3)(a), C.R.S.1973. The sole issue presented is whether there was any competent evidence in the record to support the Department's determination that Baker had refused to submit to a chemical test to determine the alcohol content of his blood. We affirm the order of the district cour…
Practitioners open Baker v. STATE DEPT. OF REVENUE, MVD when Colorado implied consent / breathalyzer refusal turns on the distinction in this sentence: "C.R.S.1973. The sole issue presented is whether there was any competent evidence in the record to support the Department's determination that Baker had refused to submit to a chemical test to determine the alcohol content of his blood." Do not lift it out of the facts the court was deciding.
Frequently asked questions
What happens if I refuse a breathalyzer in Colorado?
Refusal generally results in a one-year administrative revocation for a first offense (longer with priors) through the Colorado DMV, with a hearing right if timely requested. Refusal can be a sentencing aggravator and is treated seriously in Colorado DUI practice.
Is refusal a separate crime in Colorado?
Refusal can be a sentencing aggravator and is treated seriously in Colorado DUI practice. Birchfield allows criminal penalties for breath refusal; blood draws for criminal punishment ordinarily require a warrant.
Will the prosecutor tell the jury I refused?
Refusal is admissible at trial and may be used to explain the absence of a BAC result.
Do I need a warrant for a blood draw?
Colorado often designates breath for alcohol and blood for drugs; if the designated test is refused, officers may seek a warrant for blood, especially in crash cases. See also Birchfield and McNeely linked above.