Legal Question in DUI Law in Colorado

Implied consent

I was stopped for suspicion of DUI. The officer asked for the keys to my vehicle. I gave him the keys. We went to the back of the vehicle. He asked if I had been drinking. I admitted to having 2 1/2 drinks over a 5 hour period. I had taken medication about 1 1/2 hours earlier. The meds started to make me sick so I had consumed no alcohol for 1 hour prior to the stop. The officer asked me to take a breath test (only). I informed him that I thought I was going to get sick. He voilently shoved me stomach first into my vehicle. I informed him that at that point I wanted an attorney (because of his actions). He arrested me. About 45 minuted later, at the police station, he asked if I had changed my mind about the attorney. I told him no. He confiscated my license saying I refused the test. The officer did not appear at the DMV hearing. The hearing officer suspended my license for 1 year stating the police officer was more credible. My wife witnessed the arrest but not the stop. At no point did I refuse the test, only stated that I was going to get sick. The request for the attorney was due to his actions. The hearing was over 1 month ago. Do I have any recourse based on when the keys were taken, his actions and failure to offer blood?


Asked on 2/13/08, 2:55 am

2 Answers from Attorneys
Jim Forslund Law Office of James C. Forslund

Re: Implied consent

It is too late to do anything about the license. You have defenses to raise at court.

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Answered on 2/13/08, 7:32 am
Jason Savela The Savela Law Firm, PC

Re: Implied consent

You have some very good issues. You did not request an attorney after the arrest, so the EC refusal due to requesting an attorney does not apply. This may result in a dismissal based on a motion I have successfully used in the past.

The shove is very interesting too. Not sure why he would do that.

DMV hrg is likely a lost cause bc you have 30 days after the hrg to appeal and that has past.

But, if you get a DUI in the criminal case, you lose your license for an additional year.

Taking the keys is a factor, along with the shove that relate to custody and arrest. There may have been an illegal arrest prior to probable cause.

Did he ever read your expressed consent rights to you? (by driving on the roads of Colorado, you have expressly consented to a chemical test to determine intoxication, you can choose a blood or breath test . . . . )

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Answered on 2/13/08, 11:33 am


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