"The DUI officer told me to choose either breath or blood- they did not tell me I can refuse!"
Updated: Mar 9
In 1792, Thomas Jefferson announced that the 4th Amendment to the U.S. Constitution had been ratified. This right was meaningfully applied to all states with the incorporation of the Exclusionary Rule in Mapp v Ohio in 1961. All police searches for evidence are subject to the U.S. Constitution and its amendments.
In 2013, the U.S. Supreme court finally held that DUI investigations are not above the law established in the 4th Amendment. Colorado courts have even gone as far as to acknowledge that DUI roadside tests of balance and memory are searches under the Constitution. Police roadside acrobatics are the subject of another discussion, but taking breath or blood out of a person's body and analyzing it with scientific devices for alcohol content or medication in your system is a SEARCH protected by our rights.
The Colorado General Assembly passed a driving rule decades ago that requires anyone who drives in the state of Colorado to consent to providing a specimen of their blood or breath if they ever become the subject of a DUI investigation. Colorado DUI officers routinely tell drivers that they have two choices- breath or blood. There is no requirement for officers conducting a DUI investigation to inform drivers that they can choose to revoke the consent they "agreed to" at the time they obtained their drivers license. Even though this "agreement" may have been 50 years earlier when the driver was a teenager.
If you are reading this article, there is a good chance either you or someone about whom you care, has been in this exact trap. The right to CHOOSE NOT to waive your 4th Amendment right to not have the innards of your body analyzed by a machine were hidden by a deceptive police tactic. The sad reality is that Colorado DUI law smiles on this trickery.
The United States Constitution is a superior law to Colorado driving rules. The best DUI lawyers do not just sit back while Colorado DUI officers dance on the grave of your Constitutional rights. If an officer's presentation of your choices deceptively concealed your right NOT to waive your freedom from compelled government search without a warrant, that must be investigated. The Colorado General Assembly no doubt has the authority to dictate the terms by which your license can be taken from you- there is no Constitutional right to have a license. There is a right NOT to be searched without your consent in the absence of a warrant, and any Colorado law that says otherwise is arguably in opposition to the U.S. Constitution. Hire a DUI lawyer who will argue to for your Constitutional rights.