Can You Refuse a Field Sobriety Test in Colorado? Yes, and Most Drivers Do Not Know It

You are stopped on the shoulder, the light bar is strobing behind you, and the officer leans in and says: “Step out of the car for me. I’d like you to do a few quick tests to make sure you’re okay to drive.” It sounds like an order. It is not. What you decide in the next thirty seconds will shape the police report, the district attorney’s filing decision, and possibly a year of your driving privileges, and the officer is not required to tell you which parts of what comes next are optional.

Here is the division that matters, drawn by Colorado’s statutes and case law rather than by anything the officer says at the window: the roadside maneuvers are voluntary, the handheld roadside breath device is voluntary for adult drivers, and the evidentiary breath or blood test after a lawful arrest is the one refusal that carries automatic, severe license consequences. This guide walks through each layer, what refusing actually costs at every step, and what a refusal case looks like from the prosecution side of the file, because the attorneys writing the guidance here used to make those filing decisions.

At Right Law Group, our Colorado DUI defense attorneys have represented countless clients who faced this exact situation. Based on that experience, we know that many people agree to field sobriety tests without understanding they’re voluntary or how significantly these tests can impact their case. 

This guide explains your legal right to refuse field sobriety tests in Colorado and what you should consider before making that decision.

TL;DR

• Field sobriety tests (the eye-tracking, walk-the-line, and one-leg-stand maneuvers) are voluntary in Colorado. No statute compels them, and under People v. Carlson, 677 P.2d 310 (Colo. 1984) a roadside sobriety test is a search that requires probable cause or your voluntary consent. Refusing costs you no license time, no points, and no separate charge.
• The handheld roadside breath device (the preliminary breath test, or PBT) is also refusable if you are 21 or older. CRS 42-4-1301(6)(i) says you “may either refuse or agree,” and the result is not admissible at trial; it only feeds the officer’s probable cause decision.
• The refusal that hurts is the evidentiary chemical test after arrest. Under Colorado’s express consent law, CRS 42-4-1301.1, refusing breath or blood testing triggers a license revocation of 1 year for a first refusal, 2 years for a second, and 3 years for a third under CRS 42-2-126, plus a persistent drunk driver designation.
• You have only 7 days after the notice of revocation to request the DMV hearing that can save your license. A refusal also becomes evidence the prosecution may use at trial under CRS 42-4-1301(6)(d).
• Refusing the roadside tests does not stop an arrest that the officer can justify on other observations, but it takes the state’s favorite scoring sheet out of the case.

Table of Contents

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Where Colorado Law Draws the Line Between Optional and Mandatory Tests

Colorado’s DUI statute, CRS 42-4-1301, defines the offenses: DUI means driving when alcohol or drugs make you substantially incapable of safe operation, DUI per se means driving with a blood alcohol content of 0.08 or more regardless of how you looked or drove, and DWAI means driving while impaired to the slightest degree, with a permissible inference of impairment at a BAC between 0.05 and 0.08. Both are misdemeanors until a fourth qualifying offense, which becomes a class 4 felony. The official text of every statute cited here is maintained by the Colorado General Assembly, and a second, annotated version is available at FindLaw’s Colorado code.

Nothing in that statute, or anywhere else in Colorado law, orders a driver to perform roadside maneuvers. The legal foundation is older and stronger than most drivers realize: in People v. Carlson, the Colorado Supreme Court held that a roadside sobriety test is a full search under the state and federal constitutions. An officer needs probable cause to believe you are impaired, or your voluntary consent, before putting you through the maneuvers. That is why officers phrase the request casually. Your cooperation is the legal ingredient they need, and it is yours to withhold.

The express consent law is a different animal. By driving on Colorado roads you have already agreed, as a condition of the privilege, to chemical testing of your breath or blood when an officer has probable cause to arrest you for DUI, DUI per se, or DWAI. As Gannon Becker puts it in the firm’s recorded DUI sessions: “in Colorado, express consent is the idea that by driving in the state of Colorado, you’ve already consented to a chemical test of your blood or your breath.” You can still physically say no at the station, and officers usually will not force a needle without a warrant, but the law treats that no as a refusal with its own automatic punishment, entirely separate from whether you are ever convicted of anything.

Here is the full decision map in one table:

Test	Legal basis	Can you say no? (21+)	License cost of refusing	Where the result or refusal lands in court
Roadside maneuvers (SFSTs: eye test, walk-and-turn, one-leg stand)	People v. Carlson; no statute compels them	Yes, fully voluntary	None. No revocation, no points, no separate offense	Officer’s observations become the arrest narrative; whether your refusal itself is admissible is contested ground your lawyer can litigate
Handheld roadside breath device (PBT)	CRS 42-4-1301(6)(i)	Yes, the statute says the driver “may either refuse or agree”	None	Not admissible at trial; usable only at a probable cause hearing outside the jury’s presence
Evidentiary breath or blood test after arrest	Express consent, CRS 42-4-1301.1	Physically yes, legally no: refusal triggers automatic consequences	Revocation: 1 year (first), 2 years (second), 3 years (third or more) under CRS 42-2-126, plus persistent drunk driver status	The refusal itself is admissible at trial under CRS 42-4-1301(6)(d)

Print that mental table before you ever see a light bar. The three layers get collapsed into one blur by roadside adrenaline, and the officer has no duty to untangle them for you.

The Three Roadside Maneuvers Colorado Officers Are Actually Grading

The standardized field sobriety tests are a three-part battery developed for the National Highway Traffic Safety Administration, and each one is a scored observation exercise, not a pass-fail machine reading. What officers rarely mention is that they are grading you from the moment you unbuckle.

The horizontal gaze nystagmus test

The officer holds a pen or light near your face and watches your eyes track it, counting involuntary jerking movements called nystagmus. NHTSA’s own validation research, the 1998 San Diego field study, put this test’s accuracy at 88 percent under study conditions, the strongest of the three. The defense-side reality: nystagmus has dozens of documented causes that have nothing to do with alcohol, from certain medications to neurological conditions to fatigue, and the test’s scoring depends entirely on the officer’s subjective count in a dark, wind-blown, traffic-lit environment. The false positive problem is not a defense talking point; it is acknowledged in the training materials themselves.

The walk-and-turn test

Nine heel-to-toe steps along a real or imaginary line, a pivot, and nine steps back, while the officer counts eight standardized “clues” like stepping off line, using arms for balance, or starting too soon. San Diego study accuracy: 79 percent. This is a divided attention exercise, deliberately designed to overload you with instructions while you balance. Age, weight, footwear, knee and back injuries, inner-ear conditions, and uneven pavement all produce the same clues alcohol does. Two clues out of eight count as failure.

The one-leg stand test

Stand on one foot, raise the other six inches, and count aloud for roughly thirty seconds while the officer watches for swaying, hopping, arm use, or putting the foot down. San Diego study accuracy: 83 percent. The same physical confounders apply, and NHTSA’s own protocol cautions that the test was not validated for people significantly overweight, over 65, or with leg, back, or middle-ear problems.

Officers may also improvise non-standardized exercises: reciting the alphabet from a mid-point, counting backward, touching finger to nose. As Alexis Austin Litle notes in the firm’s recorded sessions, the touch-your-nose exercise is “not standardized,” and none of the improvised versions have any validation data behind them at all. The combined battery’s 91 percent claimed accuracy comes from trained officers under study conditions scoring drivers at or above 0.08; the roadside at midnight is not a study condition, which is exactly where a suppression challenge begins.

What Saying No to the Roadside Tests Costs You, Point by Point

Here is the honest ledger, because a refusal decision deserves real numbers rather than reassurance.

What refusing the maneuvers does not do: it does not suspend or revoke your license for a single day, it does not add points under CRS 42-2-127, it is not a criminal offense, and it does not trigger Colorado’s express consent machinery, which by its own terms covers chemical testing of blood, breath, urine, or saliva, not walking a line. Gannon Becker, who spent more than four years prosecuting in the 4th Judicial District, says it plainly in the firm’s recorded DUI discussions: “it is voluntary. That is something that they make clear… they’re often very good at getting people to do these… but it is voluntary and it’s important that people remember that.”

What refusing the maneuvers does do: it removes one source of evidence and leaves the others standing. The officer stopped you based on reasonable suspicion, usually a driving pattern, and under CRS 42-4-1302 may detain and question you on it. Odor of alcohol, bloodshot eyes, slurred speech, fumbled documents, and your own answers (“two beers”) can still add up to probable cause for an arrest without a single maneuver performed. A polite refusal does not create probable cause by itself, and it denies the state the scored clue sheet that prosecutors lean on at trial. Whether the prosecution can even tell the jury you declined the roadside tests is a contested evidentiary fight; the statute that expressly makes a refusal admissible, CRS 42-4-1301(6)(d), speaks to chemical testing, and your lawyer can move to keep a roadside-test refusal out or blunt what it is worth.

How to do it, if you choose to: stay in the car unless ordered out (you must exit if ordered; Carlson confirms an officer may require that for safety), keep your hands visible, and use plain, calm words. “Officer, I’m not going to do any roadside tests. I’d like to speak with a lawyer.” Do not argue the law on the shoulder, do not perform half a test and stop, and do not volunteer a timeline of your evening. You have a right to counsel and no obligation to build the state’s case. Miranda warnings are not required for roadside questioning before arrest, so anything you say at the window is already usable.

The Refusal That Actually Takes Your License: Chemical Tests Under Express Consent

Once an officer arrests you on probable cause for DUI or DWAI, the express consent affidavit comes out, and the stakes change completely. You choose breath or blood (drugs require blood), and the choice locks in. Declining, or agreeing and then not completing the test, is deemed a refusal under CRS 42-4-1301.1, and the consequences run on their own track at the DMV, no conviction required:

Consequence of refusing the evidentiary test	Authority	The numbers
License revocation	CRS 42-2-126(3)(c)	1 year first refusal, 2 years second, 3 years third or more (compare 9 months for a first per se result of 0.08+)
Persistent drunk driver designation	CRS 42-1-102(68.5)	Applies to every refusal, even a first offense with no conviction
Ignition interlock after reinstatement	CRS 42-2-132.5	At least 2 years of interlock-restricted driving
Early reinstatement window	CRS 42-2-132.5(4)(a)(I)	After 2 months of no driving, adults may apply for an interlock-restricted license instead of sitting out the full year
Refusal used at trial	CRS 42-4-1301(6)(d)	The prosecutor may put the refusal itself in front of the jury

Two of those rows deserve emphasis because almost nobody tells drivers about them. First, the persistent drunk driver label is not reserved for repeat offenders; the statutory definition explicitly includes anyone who “refuses to take or complete, or to cooperate in the completing of” a chemical test, and it is what drives the two-year interlock requirement. Second, the two-month early reinstatement window means a first refusal does not have to mean a full year of not driving; an interlock-restricted license can put you legally back on the road while your criminal case is still pending, and as Alexis Austin Litle explains in the firm’s recorded sessions, “we can then petition… to get you a restricted license.”

There is a charging consequence too, one that comes straight from the firm’s prosecution-side experience. A refusal case has no number in it, so the DA files the unqualified charge. In Alexis Austin Litle’s words: “When you refuse a blood or a breath test you still have the DUI, but usually you’re going to be charged with a DUI just straight up and you don’t have that opportunity to have a possible DWAI.” A DWAI carries lighter penalties under CRS 42-4-1307 and 8 points instead of 12, and refusing often takes that off-ramp off the table.

For a first offense, the criminal exposure the refusal feeds into looks like this under the penalty statute (plain-language version on the hub): a first DUI carries 5 days to 1 year in jail (the minimum can be suspended on completion of alcohol evaluation and education), a $600 to $1,000 fine, 48 to 96 hours of community service, and 12 points; a first DWAI carries 2 to 180 days, $200 to $500, 24 to 48 hours, and 8 points. A second offense means 10 consecutive days minimum with no early-release credits, and a third escalates from there. If a crash caused injury, the same stop can become vehicular assault or vehicular homicide, felonies where the chemical-test decision gets even more consequential because warrants for blood draws become routine.

The Seven-Day Clock: Your DMV Express Consent Hearing After a Refusal

The DMV express consent hearing is a separate, administrative proceeding that runs parallel to your criminal case, and it moves much faster. Jimmy Litle, who supervised impaired-driving prosecutions in the 4th Judicial District for eight years, states the deadline without decoration: “You have just seven calendar days from the date of your arrest to request a DMV hearing. If you miss that deadline, your license suspension becomes automatic.”

The mechanics, per the Colorado DMV’s DUI administrative process page and the Department of Revenue’s express consent procedures: the officer typically takes your physical license and issues a notice of revocation with the affidavit; you request the hearing within 7 days, in person at a DMV office or online; and at the hearing in a refusal case, the hearing officer decides whether you drove or were in actual physical control, whether the officer had probable cause to demand the test, and whether you refused or failed to cooperate within two hours of driving.

That narrow issue list is precisely why the hearing is worth fighting. A DMV hearing challenge can attack the stop, the probable cause showing, and the officer’s account of the “refusal” itself (was it a refusal, or a breathing problem on the machine? a request to call a lawyer that got logged as non-cooperation?). Requesting the hearing also buys information: the officer testifies under oath months before trial, and that transcript becomes cross-examination material in the criminal case. The firm’s step-by-step guide to requesting a Colorado DMV hearing walks through the forms and choices, including whether to require the officer’s presence.

What a Roadside Refusal Looks Like Inside a Colorado Prosecutor’s File

The attorneys behind this guide spent years on the filing side in two of Colorado’s busiest districts, and the view from that chair is worth more than any script. A DUI file without roadside maneuvers is thinner in a specific, structural way: the officer’s narrative carries observations (odor, eyes, speech, driving), but there is no scored battery to anchor an opinion of impairment, no clue count for the DA to recite at a jury, and no video of you swaying through a test that jurors will replay in deliberation. The case leans almost entirely on the stop justification, the officer’s subjective impressions, and the chemical result if one exists. Remove the roadside battery and refuse nothing else, and the state still has its strongest card, the number. Remove the number too, via refusal, and the state has a thin file but also a jury argument handed to it by CRS 42-4-1301(6)(d): why would a sober driver refuse?

That trade-off is real, and Gannon Becker describes both sides of it in the firm’s recorded discussions: refusing the chemical test is “favorable because there is no test that actually shows that you’re above the legal limit, but it can be used against you in trial,” and it lengthens the DMV revocation. Where the balance lands depends on facts no roadside script can predict: your priors, whether there was a crash, what the body camera shows, which judicial district is filing. A Denver County jury pool, an El Paso County jury pool, and a Douglas County courtroom in the new 23rd Judicial District do not hear the same refusal argument the same way, and a lawyer who has tried impaired-driving cases across the 1st, 2nd, 4th, 10th, 18th, and 23rd districts prices that difference into the defense plan rather than guessing.

The defense levers in a roadside-test case are concrete. Evidence suppression starts before the tests: if the initial stop lacked reasonable suspicion, everything after it can fall. Illegal search and seizure challenges reach the maneuvers themselves under Carlson when consent was coerced or probable cause was missing. Administration attacks use NHTSA’s own manual: an HGN test run with the subject facing strobing emergency lights, a walk-and-turn on a sloped shoulder, a one-leg stand demanded of a 60-year-old with a documented knee injury. And the preliminary breath test’s inadmissibility is a gift that keeps giving; as Gannon Becker notes, “It’s not admissible in trial… it is something that the officers can use to determine whether there’s probable cause,” which means a case built on a PBT number is a case built on evidence the jury will never see.

Colorado’s enforcement volume makes this a live issue for ordinary drivers, not a hypothetical. The Colorado Department of Transportation reported 16,665 DUI case filings statewide in 2025 and runs 15 high-visibility enforcement periods a year under its The Heat Is On campaign, including a July 1 to 7 period in 2026. Nationally, NHTSA reports 11,904 alcohol-impaired-driving deaths in 2024 and that crash risk at 0.08 BAC is roughly four times the sober baseline. Heavy enforcement means heavy volume, and heavy volume means shortcuts in test administration that a prepared defense can find.

Four Refusal-Adjacent DUI Results From Our Own Files

Roadside-test and testing-decision issues run through the firm’s actual DUI outcomes. These are a few of the many we have resolved; each links to the full write-up on our case studies page.

• Case 10: a DUI dismissed completely after Gannon Becker built the defense on body camera violations, the same camera footage that makes or breaks roadside-test narratives.
• Case 12: a felony fourth-offense DUI dismissed, with a plea to careless driving, by Zoe Levesque.
• Case 18: a DUI from a three-car accident dismissed, with a plea to careless driving, by Jimmy Litle.
• Case 22: a DUI premised on actual physical control, not observed driving, ending in complete dismissal and sealing of the record, by Alexis Austin Litle.

Disclaimer: past results do not guarantee a similar outcome; every case turns on its own facts, evidence, and district.

Checkpoints, Drivers Under 21, and Commercial Licenses: Where the Refusal Rules Shift

Sobriety checkpoints. Colorado permits DUI checkpoints that meet constitutional guidelines, and CDOT-funded enforcement periods use them alongside saturation patrols. Your rights at a checkpoint are the same as at any stop: you must stop and present documents, you do not have to perform roadside maneuvers, and the PBT remains refusable for drivers 21 and over. The firm’s guide to DUI checkpoints in Colorado Springs covers the local mechanics.

Drivers under 21. The refusal calculus changes. Colorado’s zero-tolerance UDD offense makes driving with a BAC of just 0.02 up to 0.05 a class A traffic infraction for under-21 drivers, adds 4 points, and, critically, CRS 42-4-1301(6)(i) lets an officer request a preliminary breath test from an under-21 driver on suspicion of any alcohol consumption at all, not just impaired driving. Express consent applies to under-21 drivers too, and minors cannot use the two-month early interlock reinstatement after a refusal; they wait a full year. Our underage DUI guide covers the separate UDD track.

Commercial drivers. A CDL holder’s livelihood rides on decisions made at the window, and the disqualification rules for commercial licenses are harsher and longer than the standard revocation schedule; a refusal can end a driving career even when the criminal case later collapses. The specifics deserve their own discussion with counsel before any decision, and our guide to keeping a CDL after a DUI is the starting point.

The First 72 Hours After a Refusal Arrest in Colorado

1. Write down everything while it is fresh. Where the stop happened, what the officer said about the tests, whether “voluntary” was ever spoken, what you said, weather, footwear, lighting, and any health conditions in play. Suppression motions are built from these details.
2. Calendar day 7. The express consent hearing request deadline runs from the notice of revocation. Request it in person or online, and talk to a lawyer first about requiring the officer’s attendance. Details in our DMV hearing guide.
3. Preserve the video. Body camera and dash camera footage is the single most powerful check on a roadside-test narrative, and it is not kept forever. A preservation letter needs to go out early; this is the exact evidence that produced the Case 10 dismissal.
4. Do not talk about the case. Not to the officer at release, not on recorded jail calls, not on social media. Anything volunteered becomes part of the file the DA screens.
5. Get counsel before the first court date. Your arraignment comes fast, and charging-stage advocacy, before the DA’s filing decision hardens, is where former prosecutors do their most efficient work. What to expect after booking is covered in the firm’s video on the Colorado DUI arrest and booking process.

What a Refusal Costs Beyond the Courtroom

The revocation is the headline, but the persistent drunk driver designation trails a refusal into ordinary life for years:

• Driving record and points. A DUI conviction adds 12 points and a DWAI 8 under CRS 42-2-127; 12 points in 12 months (or 18 in 24) triggers the point-system suspension on its own, separate from the express consent revocation running under CRS 42-2-125 and 42-2-126.
• Insurance. Reinstatement after an alcohol revocation puts you in the high-risk insurance market, and the interlock lease and monthly monitoring fees are out-of-pocket for the full two-year persistent drunk driver period.
• Employment. Two years of interlock-restricted driving is visible to anyone who rides in your vehicle, and jobs that involve any driving will ask. Background checks surface the criminal case whether or not it ends in conviction until sealing is addressed.
• Security-clearance and base-access employment. Colorado’s large military-adjacent workforce (civilian employees and contractors around installations in El Paso County) faces reporting duties and clearance review triggered by an arrest alone; the criminal defense strategy needs to account for that timeline in civilian court.
• The record itself. A refusal revocation is a DMV action, not a conviction, but the arrest and any conviction that follows appear on background checks, and the odds of getting charges reduced or dropped depend heavily on decisions made in the first week.

For the full criminal-side penalty structure, see the firm’s guides to Colorado DUI penalties, first-offense DUI, and whether a DUI is a felony, plus the hub’s plain-language pages on DUI, DUI per se, and blood alcohol content.

Frequently Asked Questions About Refusing Field Sobriety Tests in Colorado

Can you refuse a field sobriety test in Colorado?

Yes. Field sobriety tests are voluntary in Colorado. No statute requires them, and under People v. Carlson, 677 P.2d 310 (Colo. 1984), a roadside sobriety test is a search requiring probable cause or your voluntary consent.

The voluntariness is the whole point of how the request is made. Officers are trained to phrase the battery as a routine favor (“just to make sure you’re okay”) because your consent supplies the legal authority they otherwise need probable cause to replace. Declining is not an offense, adds no points, and triggers no license action, because Colorado’s express consent law covers chemical tests of blood and breath, not roadside maneuvers.

Practically: decline in plain words, stay polite, and do not perform any portion. “I’m not going to do any roadside tests” is a complete sentence, and half-completed tests read as failed tests in a police report.

Related: field sobriety tests, what to do when pulled over for DUI.

What happens if you refuse a field sobriety test in Colorado?

Nothing automatic. No license revocation, no points, no separate charge. The officer decides whether to arrest based on everything else observed: driving pattern, odor, speech, eyes, and your answers.

The distinction that trips people is between the roadside maneuvers and the post-arrest chemical test. Refusing the maneuvers costs nothing at the DMV. Refusing the evidentiary breath or blood test after arrest costs a 1-year revocation for a first refusal under CRS 42-2-126 plus persistent drunk driver status. Two different refusals, two different price tags.

If the officer arrests you anyway, that was likely the trajectory regardless; the arrest now rests on softer, more attackable evidence. Note the officer’s stated reasons as soon as you can write them down.

Related: express consent, what to do after a DUI arrest.

Is it illegal to refuse a field sobriety test?

No. Refusing a field sobriety test is not a crime, a traffic infraction, or a license violation anywhere in Colorado law. The tests exist to generate evidence, and you are never legally required to help generate evidence against yourself.

Compare the two refusals people conflate: declining roadside maneuvers is a lawful exercise of a constitutional position recognized in People v. Carlson, while refusing the post-arrest chemical test is also not a crime but carries automatic administrative consequences under CRS 42-4-1301.1. Neither puts you in jail by itself; only one takes your license.

If an officer tells you the roadside tests are required, that misstatement is worth remembering and reporting to your lawyer; it colors the voluntariness of everything that followed.

Related: illegal search and seizure.

Are field sobriety tests mandatory in Colorado?

No. They are voluntary for every driver, at every stop, including checkpoints. Colorado law compels post-arrest chemical testing through license consequences, but no law compels walking a line or standing on one leg.

The confusion is manufactured by phrasing. “I need you to step out and do some tests for me” contains one real order (stepping out, which an officer may require for safety under Carlson) and one request dressed as an order (the tests). Officers are not required to tell you which is which, and the firm’s recorded attorney guidance is blunt about how good officers are at getting cooperation they cannot demand.

If you have already done the tests at a past stop, nothing changes for next time: the right to decline is yours at every encounter.

Related: standardized field sobriety tests.

Can you be arrested for refusing a field sobriety test in Colorado?

Not for the refusal itself. Refusal is not an offense. But an officer who already has probable cause from other observations can arrest you whether or not you perform the maneuvers.

Probable cause is a totality judgment: erratic driving, odor of alcohol, bloodshot watery eyes, slurred speech, admissions, open containers. Roadside tests are one input the officer wants, not one the officer needs. What refusing does is deny the state its scored, standardized, camera-friendly exhibit; it does not erase what the officer already saw before asking.

So calibrate expectations: refusal is not an arrest shield, it is an evidence decision. If arrest follows, the defense starts from a thinner state file than it would have.

Related: probable cause, how to beat a DUI in Colorado.

Does refusing a field sobriety test give the officer probable cause?

Refusal by itself does not create probable cause, and People v. Carlson requires probable cause or consent before the tests are conducted at all. An officer cannot bootstrap an arrest from the mere fact that you declined.

That said, courts evaluate arrests on the totality of circumstances, and prosecutors sometimes argue refusal as one brick in the wall alongside driving and physical observations. The defense answer is that a constitutional right cannot be repackaged as suspicion, an argument your lawyer makes at a suppression hearing, where the stop and arrest justification get tested against the body camera record.

Ask your lawyer to demand the full video early; the gap between report language and footage is where these motions are won.

Related: suppression motion, evidence suppression.

Can refusing roadside tests be used against me in Colorado court?

It is contested ground. The statute that expressly makes a testing refusal admissible at trial, CRS 42-4-1301(6)(d), addresses chemical testing under express consent. Roadside-maneuver refusals sit outside that text.

Prosecutors will often try to weave the refusal into the arrest narrative anyway, framing it as consciousness of guilt. The defense response is a motion in limine: the refusal exercised a recognized right, its probative value is thin, and its prejudice is high. Outcomes vary by judge and district, which is one more reason the same case gets defended differently in the 2nd, 4th, or 18th Judicial District.

The practical takeaway is unchanged: a contested-admissibility refusal is a far better position than a scored, videotaped test failure, which comes in without a fight.

Related: DUI charge overview.

What is the difference between refusing field sobriety tests and refusing a breathalyzer in Colorado?

Refusing the roadside maneuvers costs nothing automatic. “Breathalyzer” covers two different machines, and the one you refuse determines the price: the handheld roadside PBT is refusable for drivers 21+ with no consequence, while the evidentiary breath test after arrest triggers express consent penalties.

The evidentiary refusal means a 1-year revocation (first offense), persistent drunk driver designation under CRS 42-1-102(68.5), at least 2 years of interlock after reinstatement, and a refusal the jury gets to hear about. The firm’s guide to refusing a breathalyzer covers that decision in depth.

Before you are ever stopped, memorize the three-layer structure: maneuvers optional, roadside puff optional at 21+, post-arrest test carries the hammer.

Related: breathalyzer test, chemical test refusal.

Can I refuse the handheld roadside breath test too for a Colorado DUI case?

Yes, if you are 21 or older. CRS 42-4-1301(6)(i) requires the officer to let you “either refuse or agree” to the preliminary breath test, and refusing it carries no license consequence.

The PBT’s legal role is narrow by design: its number can support the officer’s probable cause decision, and it is inadmissible at trial except in a probable cause hearing held outside the jury’s presence. As Gannon Becker puts it in the firm’s recorded sessions, “It’s not admissible in trial… it is something that the officers can use to determine whether there’s probable cause.”

Drivers under 21 are in a different regime: an officer who suspects any alcohol consumption may request the test, and the zero-tolerance UDD infraction starts at a BAC of just 0.02.

Related: underage DUI.

Can I refuse a field sobriety test and ask for a breathalyzer instead?

You can, and some sober drivers reason that a clean breath number ends the encounter faster than subjective balance tests. But understand what each device does before bargaining at the window.

The roadside PBT is a screening tool whose result mainly informs the arrest decision; a low reading helps you on the shoulder but does not bind anyone. The evidentiary test after arrest is the one with legal weight, and by then the choice is breath or blood under express consent, not whether. There is no statutory mechanism to trade a roadside maneuver refusal for a roadside breath test; both are simply separate voluntary requests at the pre-arrest stage.

If you are confident you are at zero, a PBT is a rational offer. With any alcohol on board, adding a number to the file rarely helps you.

Related: blood alcohol content, Colorado DUI limit.

What happens if I refuse all DUI testing in Colorado?

Refusing the roadside maneuvers and PBT costs nothing automatic. Refusing the post-arrest chemical test triggers the express consent machinery: 1-year revocation for a first refusal, persistent drunk driver status, 2-year interlock, and a refusal admissible at trial.

The combined posture leaves the state with an observations-only criminal case and gives you a DMV case focused on probable cause and the refusal finding. Prosecutors file it as a straight DUI; in Alexis Austin Litle’s words from the firm’s recorded sessions, “you’re gonna be charged with a DUI just straight up and you don’t have that opportunity to have a possible DWAI.”

Total-refusal cases are highly defensible on the criminal side and hardest at the DMV, so the 7-day hearing request becomes the most urgent move in the file.

Related: DMV express consent hearing.

How long do I lose my license for refusing a blood or breath test?

One year for a first refusal, two years for a second, three years for a third or subsequent, under CRS 42-2-126(3)(c). Compare 9 months for a first per se revocation at 0.08 or above.

The revocation is administrative and lands regardless of the criminal outcome; an acquittal at trial does not undo it. What can undo it is winning the express consent hearing, which is why the 7-day request deadline matters more in the first week than anything happening in criminal court.

Colorado also opened an early path back: after two months of no driving, an adult with a refusal revocation may apply for an interlock-restricted license rather than sitting out the full period.

Related: ways to get your license back after a DUI.

Can I get my license back early after a refusal revocation?

Usually yes, through the interlock program. Under CRS 42-2-132.5(4)(a)(I), an adult whose license was revoked for a refusal may apply for early reinstatement with an ignition interlock after two months of revocation; minors must wait a full year.

Early reinstatement is conditional: interlock lease and monitoring costs are yours, the persistent drunk driver designation keeps the device on the car for at least two years following reinstatement, and interlock violations restart clocks. It is still transformative for anyone whose job, kids, or care obligations require driving.

The paperwork sequence (revocation, insurance filing, interlock installation, application) has traps, and the firm handles it as part of the defense rather than an afterthought.

Related: interlock-restricted license statute, license reinstatement guide.

What is Colorado’s express consent law?

CRS 42-4-1301.1 provides that anyone driving in Colorado has already consented to chemical testing of breath or blood (urine or saliva for suspected drugs) when an officer has probable cause to believe they drove under the influence or while impaired.

The consent is a condition of using Colorado roads, which is why it is called express rather than implied. It activates only after probable cause exists, typically at arrest. It does not cover roadside maneuvers or, for adult drivers, the handheld roadside breath screen. Jimmy Litle summarizes it in the firm’s recorded sessions: by driving here “you’ve already agreed to chemical testing if you’re arrested for DUI,” and the clock on your license starts immediately.

The full statutory text is at the General Assembly’s official CRS site and our plain-language explainer of the express consent law.

Related: implied consent concept, the express consent statute on the hub.

What is the express consent affidavit the officer filled out?

It is the form documenting your test election or refusal, and it is what sets the DMV case in motion. The officer records whether you chose breath, chose blood, or refused, and the affidavit goes to the Department of Revenue.

In the firm’s recorded sessions, Alexis Austin Litle describes it as “a sheet of paper the DUI officer fills out… they’re gonna be going over whether you choose to do a breath test, a blood test, or whether you refuse,” and Jimmy Litle adds the consequence: reported at 0.08 or higher, “your license is revoked unless you fight it. And if you refuse to test, the penalties are even harsher.”

Keep every page you were handed at release. The affidavit, the notice of revocation, and the citation carry the dates that control your 7-day window.

Related: express consent affidavit.

How do I request a DMV hearing after a refusal, and how long do I have?

Seven days from the notice of revocation, under CRS 42-2-126. Request it in person at a driver license office or online through the DMV’s DUI administrative process.

At a refusal hearing the officer must establish driving or actual physical control, probable cause for the test demand, and a refusal or failure to cooperate within two hours of driving. You can, and generally should, decide with counsel whether to require the officer’s live testimony, which locks in a sworn account months before the criminal trial.

Missed the window? A late-hearing petition exists for narrow reasons such as incarceration, but do not plan on it. Calendar day 7 the moment you are released.

Related: step-by-step DMV hearing guide, DMV hearing challenge.

Should I do the field sobriety tests if I am completely sober?

Sobriety does not make the tests safe. The battery measures balance, flexibility, eye behavior, and instruction-following under stress, and NHTSA’s own validation figures (88, 79, and 83 percent under study conditions) mean sober people fail these tests in meaningful numbers even in the lab.

Age over 65, being significantly overweight, leg, back, knee or inner-ear conditions, fatigue, nerves, footwear, and roadside terrain all generate the same scored clues as alcohol. A sober driver who fails two of eight clues on the walk-and-turn has manufactured evidence of impairment that did not exist before stepping out of the car, and the officer’s report will not caption it “probably the gravel.”

If you are at true zero and want the encounter over, a roadside breath number is a more objective offer than the maneuvers. Many careful lawyers would still advise declining both and letting the thin file speak.

Related: field test false positives.

Can I pass field sobriety tests and still be charged with DUI?

Yes. The tests inform the officer’s probable cause decision, but no statute makes passing them a shield. An officer who believes other evidence shows impairment can arrest, and a chemical result at or above 0.08 supports a DUI per se charge no matter how cleanly you walked the line.

The reverse asymmetry is the trap: passing rarely appears in the report as passing (reports emphasize the clues observed, not the ones absent), while failing is documented in detail. That one-way ratchet is a core reason declining is so often the sound move.

If you did the tests and believe you performed well, tell your lawyer immediately; the body camera footage either backs the report or contradicts it, and contradictions are suppression and cross-examination material.

Related: what evidence prosecutors use in Colorado DUI cases.

How accurate are the standardized field sobriety tests?

NHTSA’s San Diego validation study (1998) reported 88 percent for horizontal gaze nystagmus, 79 percent for walk-and-turn, 83 percent for one-leg stand, and 91 percent for the combined battery, at identifying drivers at or above 0.08. The study itself is archived in the DOT research library.

Those are officer-administered results under controlled conditions with trained evaluators. Defense scrutiny targets the gap between that setting and a highway shoulder at midnight: strobing lights during an eye test, sloped or gravel surfaces during balance tests, subjects outside the validated population (over 65, significant weight, orthopedic or vestibular conditions), and scoring that depends entirely on one observer’s judgment with no instrument record.

Accuracy claims are also arrest-decision statistics, not impairment measurements; they say nothing about your BAC. A lawyer who knows the NHTSA manual cross-examines the test against its own rulebook.

Related: standardized field sobriety tests.

What medical conditions can make you fail a field sobriety test while sober?

Nystagmus, the eye jerking the HGN test scores, occurs naturally in a portion of the population and is produced or worsened by numerous medical causes unrelated to drinking, including certain medications, neurological conditions, and inner-ear disturbance. The balance tests are confounded by orthopedic injuries, vestibular disorders, neuropathy, age, weight, and fatigue.

NHTSA’s own training materials flag population limits for the one-leg stand and walk-and-turn (over 65, back or leg problems, significant weight), yet roadside administration rarely screens for any of it beyond a cursory question. Footwear and surface conditions, heels on a crowned asphalt shoulder, add purely environmental failure modes.

Tell your lawyer about every physical condition, medication, and injury in play at the stop, with records where they exist. The gap between your medical reality and the officer’s scoring assumptions is a defense exhibit.

Related: field sobriety tests concept via the hub’s false positives page.

Can I change my mind after agreeing to field sobriety tests?

Yes. Consent to a search can be withdrawn, and the maneuvers are consensual searches under People v. Carlson. You can stop at any point: “Officer, I’m not going to continue with these tests.”

Know the cost of the half-run test: everything already observed stays in the report, and a battery abandoned midway is often written up as though quitting confirmed impairment. Stopping is still frequently better than finishing badly, particularly if you realize mid-test that a knee, the gravel, or nerves are sinking you.

Withdraw cleanly and verbally, then stop performing. Do not negotiate or explain; explanations become report quotes.

Related: right to counsel.

Do the rules change at DUI checkpoints?

The testing rules do not. At a lawful sobriety checkpoint you must stop and provide license, registration, and insurance, but the roadside maneuvers remain voluntary and the PBT remains refusable at 21+.

Checkpoints compress the encounter: officers screen quickly for odor, eyes, and speech, and a referral to secondary screening is where the test requests begin. The same three-layer analysis applies there as anywhere, and checkpoint stops generate their own suppression issues around operational guidelines.

Expect more checkpoints during CDOT’s enforcement windows; The Heat Is On calendar publishes them in advance, including the current July period.

Related: DUI checkpoints in Colorado Springs, CDOT impaired driving.

What should I actually say to refuse politely at a Colorado stop?

Short, calm, and final: “Officer, I’m not going to do any roadside tests. I’d like to speak with a lawyer.” Provide your documents, exit the vehicle if ordered, and stop talking about your evening.

The delivery matters because everything is on camera and every word is quotable. Argumentative refusals produce reports that read poorly to the DA screening the file; composed refusals produce thin reports. Do not lecture about Carlson on the shoulder, do not consent “just to be cooperative,” and do not answer drinking-timeline questions; “I’d rather not answer questions” is lawful and sufficient.

If arrest follows, the express consent advisement about the breath-or-blood choice is a separate decision with real license consequences; ask to contact a lawyer, though the test election itself cannot wait indefinitely.

Related: pulled over for DUI guide, Miranda rights.

Does a refusal make me a persistent drunk driver even on a first offense?

Yes. Colorado’s definition in CRS 42-1-102(68.5) includes anyone who refuses to take, complete, or cooperate in completing a chemical test. No prior record is required, and the designation applies through the administrative case even if the criminal charge is later reduced or dismissed.

The designation’s teeth are the interlock and education requirements: at least two years of interlock-restricted driving after reinstatement under CRS 42-2-132.5(3), with the device, installation, and monitoring at your expense. It also shapes how the DA’s office reads the file, since the label travels with the DMV record.

This is the single most under-warned consequence of refusal in Colorado, and it belongs in the calculus before anyone decides the chemical test is the thing to decline.

Related: persistent drunk driver definition, third DUI and persistent drunk driver status.

Talk Through Your Refusal Case Before the Seven Days Run Out

If you refused tests last night, or performed them and got arrested anyway, the two clocks already running are the 7-day DMV hearing window and the DA’s charging decision. Both reward early, prosecutor-literate work: the lawyers here filed and screened these exact cases in Colorado district attorneys’ offices before defending them, and the firm’s 600+ five-star Google reviews reflect how that experience lands for clients across the state’s front range districts.

Call 719-822-6227 for a free consultation, day or night, or start with the firm’s Colorado DUI defense overview. Bring your paperwork; the affidavit and notice dates decide what has to happen this week.

Our experienced DUI defense attorneys serve clients throughout Colorado and are ready to fight for you. Contact us today for a free consultation.

 

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. The information contained herein is accurate to the best of our knowledge as of November 2025 but may not reflect the most current legal developments. Each case is unique, and outcomes depend on specific facts and circumstances. Laws and court procedures may vary by county and jurisdiction within Colorado. If you are facing criminal charges, consult with a qualified Colorado criminal defense attorney to discuss your specific situation.

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