When a police officer establishes probable cause to believe a motorist is under the influence or impaired by alcohol, he or she may request a breath or blood test. Obviously, a person who communicates a clear unwillingness to submit to a chemical test under the terms of Colorado’s Express Consent Law will be found to have refused to cooperate and will suffer the consequences.
However, some types of conduct can be construed as a refusal even if that’s not your primary intention. For example, under Colorado case law, you do not have a right to consult with an attorney prior to making your choice of test or in deciding whether to take it at all. Telling the officer who invokes the Express Consent Law that you will not make a choice until you have had a chance to consult with an attorney is normally deemed to be a refusal once the officer tells you that you don’t have the right to counsel in that instance.
Nor can you delegate the choice to the officer. The choice must be your own. Refusing to make a choice and telling the officer to make the choice for you has also been deemed to be a “refusal.”
The test for determining whether there is a refusal looks at all of your conduct in addition to your words. If you intentionally sabotage efforts to administer the test by refusing to follow simple instructions, that can also be deemed to be a refusal on the basis of your actions, regardless of what you say or don’t say.
You also risk being found to have refused the test if you decline to make any clear statement one way or the other. For example, telling an officer that you “don’t think the test is really necessary,” can be deemed a refusal. In short, don’t try to play games with the officer.
With all that in mind, can you change your mind and agree to a test after you have initially refused to submit to one? Technically, the answer is “Yes, you can change your mind. Refusals are not necessarily irrevocable.” However, you have a limited period of time in which to do this. You are not allowed to change your mind if the delay could materially affect the results of the test. Because the test must be administered within two hours of your driving, and because preparation for the test takes an additional period of time (including a twenty-minute observation period prior to the administration of a breath test), this means that the longer you wait, the less likely it is that you will be allowed to change your mind. In addition, once the officer in question has completed his duties and left your presence, your chance to revoke your refusal comes to an end, even if other officers are present who could theoretically administer the test.