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If, after the 5 phases of the DUI stop, the police officer believes the driver is under the influence or impaired by the use of alcohol, drugs, marijuana, or any combination of those substances the police officer normally places the person under arrest.  The police office should then move to the chemical test stage of the process.


Chemical Tests in General:

In Colorado the officer will require the driver to submit to a chemical sample once the driver is arrested for suspected drunk driving, drugged driving, driving while high, DUI, or DWAI type of offenses.


Test for alcohol: In Colorado, once the officer has placed the DUI suspect under arrest, and the officer believes the only substance the driver has used is alcohol, the officer should give the DUI suspect a choice to take either a blood or breath test.  These are the tests used to determine a person’s Blood Alcohol Content (BAC) or Breath Alcohol Content (BrAC).  The BAC is basically the measurement of the amount of alcohol in a person’s blood stream.


Breath Test:  The results of a breath test are immediately available to the officer.  If the person’s breath alcohol content is .08 or higher, then the officer will charge the person with DUI charges and other possible charges.  If the person’s breath alcohol content is .05 - .079 the charge will be to the lessor offense of DWAI and other possible charges.  If the driver is a minor, under the age of 21, and the breath result is .02 or higher, they will also be charged for DUI.


Blood test:  Because the blood results are not immediately available, the officer will generally charge the person for DUI.  If a blood test results is .08 or higher (or .02 or higher for a driver under the age of 21), the prosecution will proceed under the DUI laws and any other charges the driver was cited for.  If a person’s BAC is .05 - .079 the prosecution should lower the DUI charge to a DWAI.  If the result is below the numbers above the prosecutor should drop the DUI charges.  However, a prosecutor can still proceed on DUI charges based on the officers’ observations.  


Department of Motor Vehicles (DMV):  When a driver’s BAC is .08 or above (.02 for a minor driver under the age of 21) the results are sent to the DMV.  The DMV will then proceed to revoke the driving privileges of the person charged.  The driver does have a right to an administrative hearing regarding the revocation of the driving privileges.


If a breath test was conducted the office will have the results available immediately.  When a breath test has provided the results of .08 BAC or higher the officer will confiscate the driver’s license and issue a temporary driver’s license that is good for 7 days.  The driver then has the 7 calendar days to request a hearing from the DMV. If the driver requests a hearing, then the 7 day license will be exchanged for a temporary driver’s license that is good for 60 days or until the date of the hearing, whichever occurs first.


If a blood test is conducted the officer will not have the results immediately available so the officer does not confiscate the driver’s license.  The samples of blood are sent to a laboratory.  If the results are .08 or higher, the results are then sent to DMV.  The DMV will issue a letter to the driver notifying the driver that the driver’s license is going to be revoked for drunk driving and that the suspected drunk driver has 7 days to request a hearing.  The letter is deemed received three days after mailing.  If the driver wishes to go to hearing the suspected drunk driver is then required to go into DMV and request a hearing within 7 days.  The driver will be given a temporary permit that is good for 60 days or until the date of the hearing, whichever occurs first.  Failure to request a hearing within 7 days of receipt of the DMV notice will result in the hearing being waived and the license being revoked for drunk driving, DUI.


If the officer believes the person is on illicit drugs, prescription drugs, or marijuana, the officer can make the choice between blood or urine.  These tests are used to determine the amount of drugs or marijuana in a person’s system. The law does not currently provide a mechanism for the DMV to revoke a license based on a level of drugs in a person’s system.


A person driving in the state of Colorado has automatically “expressed consent” to take a blood, breath, or urine test once the officer has reasonable suspicion that the driver has been drinking, taking drugs, or using marijuana - specifically THC content.  If the DUI suspect refuses to take the test that person will have his or her Colorado driving privileges revoked for 1 year for a first time refusal.  There is a possibility to be issued a restricted license after 3 months on a first time refusal.


For more on driver’s license issues please see our DMV section.  The above information does not include all of the DMV issues or possible revocation or suspension of a driver’s license.  Because of the 7 day period to request a hearing we thought the basic information should be included here in addition to our DMV section.


After the chemical test?


Once the driver has submitted to a chemical test the officer will generally do one of 3 things:


  • Release the driver.  The cop is not required to place the person in jail.  In most situations the driver will be issued tickets and given a date to appear in court, and sign promising to appear in court.  The driver will be allowed to contact a friend or family member for a ride, call a taxi-cab, be allowed to leave on their own accord, or sometimes a nice police officer will give them a ride.


  • Detox.  If an officer believes a person is too intoxicated that the level of intoxication could pose a risk of an overdose, or if the cop simply believes the driver is too intoxicated to make it safely home, the office may bring the driver to detox for safety reasons.


  • Jail.  Although it is uncommon that a DUI suspect is placed in jail the date they are charged, an officer does have discretion to incarcerate the suspect and make the suspect post bond.  If the suspect was combative with the officer, is also charge with other serious charges, or is a flight risk the officer is likely to book them in jail and require a bond to be posted.  Sometimes a cop will place the person in jail because the officer takes it personal that a driver exercised the right to remain silent, refused to complete the voluntary roadside tests, refused to complete the chemical test, or simply did not get along with the officer.