Longmont Public Safety (LPS) posted a public service announcement about Colorado’s Expressed Consent Law (C.R.S. § 42-4-1301.1) which requires a driver to submit to a blood or saliva test if an officer has probable cause that the individual is under the influence of alcohol, marijuana, prescription drugs, and/or other illegal substances. “Penalties for refusing are often more severe than for failing the test, so drivers are encouraged to take the test if they are suspected of driving impaired,” LPS said. “Refusal to provide a breath or blood test once arrested for a DUI may come with increased consequences.”
LPS clarified that drivers still have a right to refuse a roadside breathalyzer test if the officer doesn’t have probable cause for arrest. Probable causes include erratic driving, slurred speech, sobriety test failure, or an admission of alcohol or drug consumption by the driver. When a driver is arrested, the Expressed Consent Law requires the individual to submit to a toxicology test.
Multiple members of the public commented on LPS’s Facebook post with concerns about THC levels in blood tests reflecting intoxication even when the driver did not consume marijuana or THC products in the hours before driving the vehicle. “A toxicologist can interpret the blood results and determine if it is recent use or prolonged use,” LPS responded.
While drunk driving has a strict limit of .08 blood alcohol content (BAC), a level of five nanograms of THC or more per milliliter in the whole blood provides “permissible inference” of impairment. The Colorado Department of Transportation (CDOT) states that “the primary determinant is the driving behavior and observed level of impairment witnessed and documented by the law enforcement officer. Arrests are made on observed impairment. Any level of active THC in your blood can put you at risk of a DUI.”
While levels of THC can remain in the blood for long periods of time, DUI arrests and convictions are never made on the basis of blood tests alone. Officers who have determined they have probable cause to arrest somebody for impaired driving will inform the driver of Colorado’s Expressed Consent law. An individual is not expected to provide consent for a blood test if there is no probable cause of impaired driving.
The first time a person is convicted of violating the expressed consent law leads to an automatic revocation of the individual’s driver’s license for 12 months and receive an automatic persistent drunk driver (PDD) designation. The first offense for a DUI will receive a minimum of 9 months license suspension and will only receive a PDD designation if the BAC is over .15, there are multiple prior offenses, or the driver refuses to comply.
There are more legal defense strategies for a DUI conviction than for an ECL conviction. A defendant can argue that the breathalyzer or blood test was inaccurate, for example. Denying a test can boost the prosecution’s case that a driver was knowingly intoxicated at the time of the traffic stop.
If there is sufficient evidence of impairment, a driver can get convicted for an ECL violation and a DUI. Refusing the breathalyzer, saliva test, or blood test does not provide any protection for the driver from a DUI conviction. CDOT says more than 60 people are arrested each day for DUI, involving alcohol, marijuana, and/or other drugs.
