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Colorado Express Consent Law: What Happens If You Refuse a Test
Last updated: October 1, 2026
Quick answer: Under Colorado's express consent law, anyone who drives in the state is treated as having agreed to a breath or blood test. The test is required when an officer has probable cause (a reasonable belief based on facts) that you drove under the influence or committed a related offense (C.R.S. 42-4-1301.1).
- A refusal leads to a license revocation, which means the state takes away your right to drive for a set time. It lasts 1 year for a first violation, 2 years for a second and 3 years for a third or more (C.R.S. 42-2-126(3)(c)).
- The refusal can be used as evidence at a trial for DUI (driving under the influence) or DWAI (driving while ability impaired) (C.R.S. 42-4-1301(6)(d)).
- You have only seven days after the day you receive the notice of revocation to ask the DMV, in writing, for a hearing to review the revocation. A notice sent by mail counts as received three days after it was mailed (C.R.S. 42-2-126(6)(b), (7)(b)).
This article explains what the law says and what follows a refusal. It does not tell anyone whether to take or refuse a test. That choice has real legal consequences, and the facts of every stop are different.
What "express consent" means
Colorado's express consent law is C.R.S. 42-4-1301.1. It says anyone who drives a motor vehicle "upon the streets and highways and elsewhere throughout this state" is treated as having agreed to its testing rules.
An officer can ask you to take a breath or blood test if the officer has probable cause to believe you drove:
- under the influence of alcohol or drugs (DUI)
- with a blood or breath alcohol level (BAC) of 0.08 or more (DUI per se) (C.R.S. 42-4-1301(2)(a))
- while impaired by alcohol or drugs, even to the slightest degree (DWAI)
- under age 21, with a breath alcohol level of 0.02 to 0.05 (underage drinking and driving, or UDD) (C.R.S. 42-4-1301(2)(d)(I))
When asked, the law requires you to take the test, complete it and cooperate with it (C.R.S. 42-4-1301.1(2)(a)(I)).
Breath or blood: who chooses
If you are 21 or older, you can generally ask for a blood test. If you ask not to have blood drawn, the test will be a breath test. Drivers under 21 can also ask for a blood test, unless the suspected offense is UDD. Then the test is a breath test (C.R.S. 42-4-1301.1(2)(a)(I)). If you cannot take a breath test because of an injury or illness, or you are getting medical care where no state-certified breath test machine is available, the test will be a blood test (C.R.S. 42-4-1301.1(2)(a)(II)).
Once you choose, you cannot switch. If you choose a test and then do not take or complete it, the law treats that as a refusal (C.R.S. 42-4-1301.1(2)(a)(II)).
One exception is for "extraordinary circumstances," such as broken breath test equipment or weather delays, that may keep the chosen test from being done within two hours. Then the officer must tell you and direct you to take the other test. Switching in that case is not a refusal. Not completing the other test is a refusal (C.R.S. 42-4-1301.1(2)(a.5)).
The two-hour window
The law requires the driver to cooperate so the sample can be taken within two hours of driving (C.R.S. 42-4-1301.1(2)(a)(III)). When drugs may be involved, an officer with probable cause of DUI or DWAI can also require tests of blood, saliva and urine. The driver must also cooperate so those samples can be taken within two hours of driving (C.R.S. 42-4-1301.1(2)(b)).
The roadside breath test is different
During a stop, an officer who reasonably suspects you were driving under the influence of, or impaired by, alcohol may ask you to blow into a screening device. This is called a preliminary screening test. For a driver under 21, a reasonable suspicion of any drinking is enough. Under C.R.S. 42-4-1301(6)(i), the officer must first tell you that you may refuse or agree to it. The officer can use the result to decide whether there is probable cause and whether to ask for the required test.
This roadside test does not count as the test the express consent law requires (C.R.S. 42-4-1301.1(7)). Neither its result nor a refusal of it can be used in court, except at a hearing outside the jury's presence about whether the officer had probable cause (C.R.S. 42-4-1301(6)(i)).
What counts as a refusal
Under Colorado law, a refusal means refusing to take or complete a required test, or not cooperating so it can be completed (C.R.S. 42-2-126(2)(h)). It can include:
- saying no to a breath or blood test
- not completing a test, or not cooperating so it can be completed
- choosing one test and then failing to complete it
- not signing a release or consent form required by the hospital, clinic or other person allowed to take the sample (C.R.S. 42-4-1301.1(3))
When an officer can force a blood draw without a warrant
Without a warrant, an officer generally may not physically restrain someone to get a sample. The law makes an exception when the driver will not test and the officer has probable cause to believe the driver committed one of these crimes:
- criminally negligent homicide while operating or driving a motor vehicle
- vehicular homicide while under the influence of, or impaired by, alcohol or drugs
- third degree assault
- vehicular assault while under the influence of, or impaired by, alcohol or drugs
In those cases, the officer may require a blood test (C.R.S. 42-4-1301.1(3), as changed by Senate Bill 26-072).
Senate Bill 26-072 narrowed this list for offenses on or after September 1, 2026. For offenses before that date, any criminally negligent homicide was on the list (Senate Bill 26-072).
This limit applies only to tests done without a warrant. The Colorado Supreme Court has held that it does not stop a blood draw done under a valid search warrant signed by a judge (People v. Raider, 2022 CO 40). So a refusal does not always mean no blood test will happen.
What happens after a refusal
License revocation
Under C.R.S. 42-2-126(3)(c), the DMV must revoke the license of a person who refuses for:
- 1 year for a first violation
- 2 years for a second violation
- 3 years for a third or later violation
The revocation is at least three years if the person was driving a commercial vehicle carrying hazardous materials.
If you are still with the officer, the officer must serve you with a notice of revocation and take any driver's license you hold. The DMV calls this form the Express Consent Affidavit and Notice of Revocation. If the officer takes a valid license, the officer gives you a temporary permit good for seven days (C.R.S. 42-2-126(5)(b)). If the officer does not serve the notice, the DMV mails it. A mailed notice counts as received three days after mailing (C.R.S. 42-2-126(6)(b)). The revocation takes effect seven days after you receive the notice (C.R.S. 42-2-126(6)(d)).
If you are also convicted of DUI, DUI per se, DWAI or UDD from the same incident, both the refusal revocation and any license penalty from the conviction apply. The two run at the same time, and the total cannot be longer than the longer of the two (C.R.S. 42-2-126(4)(a)(III)(B)).
The license case is separate from the criminal case. The outcome of the criminal case does not change a revocation for refusal (C.R.S. 42-2-126(6)(a)).
Getting a license back early
A person revoked for refusal can apply for early reinstatement after two months of revocation. Early reinstatement means getting a license back before the revocation ends. It comes with an interlock-restricted license, which allows driving only a vehicle with an ignition interlock. An ignition interlock is a device that tests the driver's breath for alcohol before the car will start and from time to time while driving. Drivers who were under 21 at the time of the offense must wait one year (C.R.S. 42-2-132.5(4)(a)(I), (9)(a)). The person must also file proof of insurance, often called an SR-22, with the DMV (C.R.S. 42-2-132.5(4)(b)(II)). The Colorado DMV says drivers who are not Colorado residents cannot get early reinstatement in Colorado (Colorado DMV).
This rule is changing. House Bill 26-1242 was signed May 28, 2026, and takes effect June 1, 2027. For revocations on or after June 1, 2027, it removes the two-month wait. The one-year wait for drivers under 21 stays.
The "persistent drunk driver" label
Colorado law lists a refusal as one of the ways a person becomes a "persistent drunk driver" (C.R.S. 42-1-102(68.5)). That label brings added requirements, including these:
- Level II education and treatment. The person must complete a Level II alcohol and drug education and treatment program certified by the Behavioral Health Administration in the Colorado Department of Human Services. To get driving privileges back before finishing it, the person must file proof of current enrollment with the DMV (C.R.S. 42-2-126(4)(d)(II)).
- A longer interlock period. After reinstatement, the person must hold an interlock-restricted license for at least two years before getting any other license (C.R.S. 42-2-132.5(3)).
The refusal can be used at trial
If you later stand trial for DUI or DWAI, the refusal is admissible as evidence. That means the prosecution may use it at the trial. You cannot use the privilege against self-incrimination (the right not to be a witness against yourself) to keep it out (C.R.S. 42-4-1301(6)(d)). Our DUI page explains the court side of a DUI case.
Commercial drivers
An officer who asks a person driving a commercial vehicle to take a test must give a warning. The warning is that a refusal leads to a 24-hour out-of-service order and a one-year revocation of the privilege to drive a commercial vehicle (C.R.S. 42-4-1301.1(4)). An out-of-service order bars the driver from driving a commercial vehicle for that time. If you hold a commercial driver's license (CDL), a refusal can lead to revocation of your commercial driving privilege even if you were driving your own car. The length comes from federal rules that Colorado law adopts. It can be longer than the one year in the warning, for example if the commercial vehicle was carrying hazardous materials, and it can be for life after a second offense (C.R.S. 42-2-126(3)(d), which applies 49 CFR 383.51). See our commercial driver DUI page.
The 7-day deadline to challenge the revocation
You must ask for a hearing in writing within seven days after the day you receive the notice of revocation. The Colorado DMV counts these as calendar days, not business days, so weekends count (Colorado DMV). If an officer served you, that is the day you got the notice. If the DMV mailed it, you are treated as receiving it three days after it was mailed. If the DMV does not receive your written request within the seven days, you lose the right to a hearing, and the revocation becomes final (C.R.S. 42-2-126(6)(b), (7)(b)).
A request on time can put the revocation on hold, but only if both of these happen:
- the DMV receives your written request within the seven days
- the DMV issues you a temporary permit
The DMV issues that permit when its records show you held a valid license or permit and surrendered it. The hold lasts until the hearing officer's final order. A delay that you or your lawyer cause or ask for does not keep the revocation on hold (C.R.S. 42-2-126(6)(d), (7)(d)).
The Colorado DMV says you can make the request in person at a DMV office, or in writing by mail or email to its Express Consent Unit.
A late request is granted only in two cases. One is when you did not actually receive notice of the revocation. The other is when a physical incapacity, such as being in the hospital or in jail, kept you from asking on time. The late request must include a verified statement, which is a written explanation that you swear is true. Even when a late request is granted, the revocation is not put on hold (C.R.S. 42-2-126(7)(c)).
In a refusal case, the hearing officer looks at questions such as these:
- Did you drive, or were you in control of, a vehicle in Colorado?
- Did the officer have probable cause to ask you to take a test?
- Did you refuse to take a test, or to cooperate in completing one, within two hours of your driving?
- If you challenge it, were the officer's first contact with you and your arrest lawful?
The first three questions are the ones the Colorado DMV lists for refusal cases (the two-hour rule is in C.R.S. 42-4-1301.1(2)). The fourth comes from C.R.S. 42-1-228 and C.R.S. 42-2-126(8)(h). Under those laws, once a driver raises this challenge, the evidence must show that the first contact and the arrest were valid under the Constitution and state law. If it does not, the driver is not subject to license revocation.
To learn what an express consent hearing is, see our DMV hearings page.
When to talk to a lawyer
The seven-day deadline is short, and a late request is allowed only in narrow cases. Reaching out before the deadline passes gives a lawyer time to help. A lawyer can review your paperwork, explain how the license case and the court case fit together, and help you request a hearing on time. If you are dealing with a recent arrest, our guide to what happens if you're arrested in Colorado walks through the court steps.
Frequently asked questions
Can I refuse a breathalyzer in Colorado? The roadside preliminary screening test is voluntary, and the officer must tell you that you can refuse it. The breath or blood test requested under the express consent law is different. Refusing it leads to license revocation, and the refusal can be used at a DUI or DWAI trial (C.R.S. 42-4-1301(6)(d), (6)(i); C.R.S. 42-2-126(3)(c)).
How long is my license revoked for refusing a test in Colorado? One year for a first violation, two years for a second and three years for a third or more (C.R.S. 42-2-126(3)(c)).
How long do I have to challenge a refusal revocation? Seven calendar days after the day you receive the notice of revocation. A notice sent by mail counts as received three days after it was mailed. The DMV must receive your written request within those seven days (C.R.S. 42-2-126(6)(b), (7)(b); Colorado DMV).
Can I get my license back early after a refusal? If you were 21 or older at the time of the offense, you can apply for early reinstatement with an interlock-restricted license after two months of revocation. Drivers who were under 21 must wait one year (C.R.S. 42-2-132.5(4)(a)(I)). For revocations on or after June 1, 2027, House Bill 26-1242 removes the two-month wait. Other conditions apply, including proof of insurance.
Can a refusal be used against me in court? Yes. If you stand trial for DUI or DWAI, the prosecution can use the refusal as evidence (C.R.S. 42-4-1301(6)(d)).
Talk to a Colorado criminal defense lawyer
If you refused a test, or you have questions about an express consent revocation, Criminal Law Matters offers a free consultation. Call (720) 770-7324 or contact us online. Please reach out soon, because the seven-day deadline is short.
This article is general information, not legal advice. Reading it or contacting us does not create an attorney-client relationship.
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