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Can you change your mind about taking a blood alcohol test?

On Behalf of | Jan 24, 2024 | Drunk Driving Charges |

It’s not often that a DUI case makes it up to the Colorado Supreme Court, but the justices heard arguments in one such case late last year. Whatever their decision turns out to be, the case raises an important question about whether someone has the right to change their mind about taking a blood alcohol test (within a designated time) after initially refusing one.

Colorado has an “expressed consent” law similar to “implied consent” laws in other states. If you’re driving on the state’s roads, you’re assumed to have consented to either a breath or blood test if you’re suspected of driving under the influence and have been arrested accordingly. Refusal can cost you your driver’s license and be used as evidence against you.

The case before the Colorado Supreme Court

In the case before the high court, a man was detained after hitting another vehicle on suspicion of drunk driving. Although he initially agreed to take a blood test, he refused once he arrived at the facility where the test was to be administered. That refusal was recorded on an officer’s body camera. He then changed his mind again within the two-hour testing window.

The law allows someone to change their mind about whether or not to take a test, as long as they don’t wait until after that two-hour window has passed. They just can’t change the type of test they’ve agreed to.

At issue is that prosecutors showed the jury tape of the man refusing the test without clarifying that he changed his mind again shortly thereafter. The original trial judge reportedly believed that the final change of mind wasn’t an option, so prosecutors weren’t required to mention it.

Was the recorded refusal presented fairly?

While the justices haven’t yet ruled in the case, their questions indicate that at least some have an issue with how it was handled at trial. One noted that “the jury was left with the impression that he just refused.”

Although the prosecution argued that the defendant could have taken the stand and set the record straight, another justice asked, “Why do they get to put on half the video and then say it’s the defendant’s job to put on the rest of the story?” That also seemed to be the thinking of the appeals court that overturned the jury’s conviction.

Regardless of the outcome of this case, it’s important for everyone to know their rights regarding consenting to a blood alcohol test if you’re pulled over for suspected impaired driving. Getting experienced legal guidance right away can further help you protect your rights.

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