Refusing the Roadside Test but Taking the Test at the Jail

Attorney Answer

Declining the roadside breath test is not a refusal under Colorado law, and it cannot be used against you at trial. By taking the test at the jail you complied with Express Consent. This is the opposite of what most people are told.

Colorado treats the roadside device and the jail test as two different things. Under Colo. Rev. Stat. § 42-4-1301(6)(i), an officer may conduct a preliminary screening test only "after first advising the driver that the driver may either refuse or agree to provide a sample" — you have an express statutory right to say no to the roadside device. The same subsection limits what that test is for: the result may be used only to help establish probable cause and to decide whether to request an evidentiary test, and "neither the results of such preliminary screening test nor the fact that the person refused such test shall be used in any court action except in a hearing outside of the presence of a jury" held to determine probable cause.

The statute confirms the separation from the other direction as well. Colo. Rev. Stat. § 42-4-1301.1(7) provides that "[a] preliminary screening test conducted by a law enforcement officer pursuant to section 42-4-1301 (6)(i) shall not substitute for or qualify as the test or tests required by subsection (2) of this section." The evidentiary test at the jail is the one the Express Consent law is about, and you took it.

Two cases, not one. The criminal charge and any Division of Motor Vehicles action against your licence run on separate tracks, with different standards of proof, and they can reach opposite results on the same stop. Your PR bond keeps you out of custody in the criminal case; it does nothing at all about your driving privilege.

What you can do

1. Look for any notice of revocation given to you at the jail and read the deadline on it for requesting a DMV hearing. If there is one, request the hearing in writing inside that window and keep proof. 2. Write down now what you were told before the roadside test — whether the officer told you that you could refuse it — and what you were told before the jail test. 3. Get a lawyer in place before your court date, and give them the two points above in writing. 4. Read your bond conditions and comply with every one of them; a bond violation can put you in custody regardless of how the DUI itself comes out. 5. Appear at the court date. Missing it can produce a warrant.

⏱ Time limits apply. If a notice of revocation was issued, Colorado's Express Consent scheme gives only a short window — often about a week from that notice — to request the DMV hearing, and it runs separately from and much faster than the criminal case. The exact deadline depends on your paperwork and facts, so read the notice itself.