If a police officer in Colorado has probable cause to believe that a person’s ability to drive is impaired even to the slightest degree due to alcohol consumption, he will require the person (driver) to submit to a chemical test of either blood or breath. According to Colorado law, the driver has already consented to this test simply by driving on the roads in Colorado. An adult driver at least 21 years of age or older has a right to a blood test.
If extraordinary circumstances are present, then a police officer may request that a driver submit to a different test than the one chosen. Extraordinary circumstances are those which are out of the control of law enforcement. Examples include, but are not limited to: high call volume affecting medical personnel, power outages, malfunctioning breath test equipment and weather-related delays. Extraordinary circumstances do not include: a busy workload, inconvenience, a minor delay that does not impact the 2-hour window to complete the test, and routine circumstances within law enforcement’s control.
Absent extraordinary circumstances, a driver may not change his election of chemical test. In other words, a driver may not select blood and then change his mind to breath or vice versa. The police officer is required by law to accommodate the driver’s initial selection. Although the law does not specify sanctions when the police don’t honor the driver’s initial selection, case law has shown that dismissal is appropriate in certain cases.
The purpose of the Express Consent Statute is to facilitate cooperation between law enforcement and drivers in promoting highway safety. In order to further this cooperation, the law creates mutual rights and responsibilities for the driver and the police. If a police department has no reasonable protocol in place for completing the driver’s selection of test, then dismissal of the charges has been held in some cases to be an appropriate remedy. Further, the courts have held that when an officer denies a driver his right to choose between a blood and a breath test that the officer denies the driver the right to establish non-intoxication. The state may not disregard the statutory rights of drivers with impunity.
Although dismissal of DUI charges against a person has been held to be a drastic remedy, courts appear to be serious about ensuring that the police honor a driver’s selection. Dismissal has been held to be an appropriate remedy when the police don’t have a reasonable protocol in place to obtain and complete the test under routine circumstances or when the test that the driver selected is not given and there is no good faith effort by the police to follow that protocol.