CO Supreme Court Rules on Express Consent

The Colorado Supreme Court recently ruled that failure to administer the form of alcohol test requested by an accused drunk driver will not automatically result in dismissal of the charges. In Turbyne v. People, a suspected drunk driver requested a blood test. Due to weather, volume of police calls and other uncontrollable factors, a blood test was not available and the arresting officer offered a breath test instead. The driver initially refused the breath test, but later agreed when the officer told him refusal to take a test would result in the loss of his driver's license for one year. The test result showed a BrAC more than twice the legal limit. At trial, the driver moved to dismiss the charges on the grounds that the requested form of test was not administered. The trial court dismissed the charges, but the DA appealed to the District Court, which reversed the trial court and remanded the case.

The Supreme Court held that, although the results of the breath test were inadmissible because the requested form of test was not administered and the breath test was the product of unfair coercion, the failure to administer the requested form of alcohol test did not constitute bad faith on the part of the arresting officer and thus dismissal of the charge was not justified.

To summarize the law on this subject, Colorado law sets forth that drivers in this state, by virtue of their sanctioned driving privilege, have expressed consent to complete a chemical test of their blood or breath when requested by a law enforcement officer who has probable cause that the driver is driving impaired or under the influence. An officer is NOT required to offer a choice of test, but a driver can elect either blood or breath and whichever choice he/she selects must be administered. Refusal or failure to satisfactorily complete the test will result in a one-year suspension of the driver's license. As per above, if an officer fails to administer the form of test requested, the driver cannot be penalized at trial for failing to take the test and, if bad faith in failing to administer the test is found by the court, the charge can be fully dismissed.