Picture this. You’re driving home after a dinner out with friends. Maybe you’ve had a beer or two with your meal — maybe you haven’t had anything to drink at all. At some point during the ride home, you look in the rearview and see flashing lights.
If you’ve seen cop shows, you probably know what’s next. The police will ask to see your license and registration and whether you’ve been drinking. If they believe you have been, they may ask you to exit the vehicle and take some field sobriety tests.
These tests — including the “walk in a straight line” test — can feel very sketchy. What if your nerves get in the way? What if you accidentally stumble and the police take it as a sign that you’re drunk? You want to refuse the tests, but the law enforcement officers are pressuring you to comply. Do you have to do it?
Good question. Law enforcement officers aren’t always as trustworthy as you might hope (after all, their job is to catch you if they believe you’re doing something wrong), and saying the wrong thing or following their instructions may just set you up for a DUI arrest or criminal charges.
Because of this, you need to know your rights when it comes to field sobriety tests in Colorado. If you aren’t sure what they are, a Denver DUI defense attorney can help. In this post, we’re going to take a deep dive into the legality of field sobriety tests and your rights.
You Don’t Have to Take a Field Sobriety Test in Colorado
In fact, no matter what state you get pulled over in, you can refuse a field sobriety test. Field sobriety tests (FST) in Colorado include:
- Horizontal gaze nystagmus (HGN),
- Walk-and-turn (WAT), and
- One-leg stand (OLS).
Officers may ask you repeatedly to take some form of these tests. They want you to take the tests because they could provide evidence or probable cause to believe that you were driving under the influence.
The important thing you need to understand is that It is not illegal to refuse these tests, and if there is no other reason to believe that you were drinking and driving, the officer should let you go.
If you choose to refuse a field sobriety test, be firm but calm. Simply say, “I refuse to take a field sobriety test.” Anything else that you say may be used against you if you are later arrested and charged.
You do not have to answer any questions. If you are pressed by officers, simply stay silent or calmly remind the officers of your right to stay silent.
The only thing you do have to do is hand over your license and registration.
Colorado’s “Implied Consent” Laws and What They Mean
If you have been pulled over, law enforcement officers may tell you that Colorado’s “implied consent laws” require you to take sobriety tests. That’s not exactly true. Colorado does have “implied consent” laws, but they do not apply to FSTs.
Instead, the laws state that anyone who is driving a motor vehicle must consent to a chemical test. FSTs are not chemical tests. Those refer to blood, breath, and urine tests. (Yes, that includes a Breathalyzer.)
Even that kind of testing is only allowed if the officer has probable cause to believe that the driver was operating the vehicle under the influence of controlled substances or alcohol. Probable cause may include the smell of alcohol on a driver’s breath or bloodshot eyes.
If you were speeding or ran a red light, for example, law enforcement officers may have reason to believe that you were driving recklessly. Do not be afraid to ask why you were pulled over in the first place before taking a chemical test.
Evidence that is left “in plain sight” may also be all officers need to search your car or ask for a chemical test. If alcohol or drug paraphernalia are clearly visible around your car, law enforcement officers can use that against you.
What Happens If You Refuse a Chemical Test in Colorado?
Refusing to take a chemical test will result in the loss of your license. In fact, a law enforcement officer has the right to immediately take your license away after refusing a chemical test. (You will get a seven-day permit that will quickly expire.)
The length of license revocation depends on your record:
- Refusing a chemical test for the first time will result in a one-year license revocation.
- If you refuse the test a second time, you may lose your license for two years.
- If you refuse the test a third time, you may lose your license for three years.
Driving on a revoked license is a serious crime and may result in jail time and fines. The best way to avoid these charges is not to get your license revoked in the first place.
In short, chemical tests are required, but field sobriety tests are not. Don’t fall into the trap of taking one. If the officer who pulls you over repeatedly pushes you to take the tests, calmly refuse and ask if you are allowed to continue on your way. If they refuse to answer but continue to detain you, it might be wise to ask if you can call your lawyer.
About the Author:
Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state. She has also been recognized for her work in domestic violence cases.