Expressed Consent – when it comes to DUI and DWAI cases in Fort Collins and Larimer County – means that anyone driving on Colorado roads has consented to provide a sample of their blood or breath if police feel there is probable cause for impaired driving. This, unlike roadside tests, is NOT voluntary. Now, it’s completely understandable that while you are dealing with being pulled over and accused of driving under the influence by a police officer, you might be wary about what they are asking you to do and telling you. Even though you are required to consent to the blood or breath test, they do ask if you are willing. I mean, unless there is a warrant signed by a judge requiring the sample, you can still technically refuse to provide your blood or breath. This just leads to other collateral consequences with your license and DUI case. So, maybe in the confusion of it all, you say that you won’t consent – then, within a reasonable timeframe and while still with the arresting officer, you change your mind and agree to provide the sample. Court rulings have stated that the officer is required to get the sample, as long as it’s still within a reasonable timeframe.
Expressed Consent and DUI / DWAI Cases: What Is a Reasonable Timeframe to Change Your Mind?
Let’s look at a couple examples where someone has changed their mind and whether their timing would be considered reasonable.
- Example #1 – You are pulled over for weaving and as the officer talks with you, he says he smells an odor of alcohol on your breath and sees that your eyes are bloodshot and watery. He asks if you will perform roadsides and you decline (YAY! This is the right choice!) Then, the officer says that he is arresting you for Driving Under the Influence and advises you about expressed consent. He asks if you would like to submit a blood or breath test. You say that you will provide a blood sample. The officer takes you to get a blood draw and right before the procedure, you say that you have changed your mind and no longer want to give the sample. The officer and the nurse are annoyed and leave the room to talk. Within about 5 minutes, while you are still in the facility and with the same officer, you say that you have changed your mind again and are now willing to give the sample. The officer (still annoyed) says it’s too late and takes you to be booked into jail. In this example, the timeframe for you changing your mind was completely reasonable and the officer erred in not allowing you to give the blood sample.
- Example #2 – You are pulled over by law enforcement for running a red light and the officer suspects you have been drinking. You refuse roadsides and refuse to provide a blood or breath sample with expressed consent. The officer takes you to the Larimer County Jail for booking. He leaves the facility to go back on patrol and about 30 minutes after you initially arrived at the facility, you say that you changed your mind and will give a breath sample. The deputies at the jail tell you it’s too late. Because the arresting officer has already completed the paperwork and left the area, the timeframe on this one would likely not be seen as reasonable and it would not be seen as a valid argument.
DUI and DWAI Defense Attorneys in Loveland and Estes Park: Why Would Changing Your Mind for Expressed Consent Matter?
In Fort Collins, Loveland, and Estes Park, when it comes to DUI and DWAI cases, so much is subjective! It’s so much about the officer’s interpretation of your actions and mannerisms. Some people have slow speech even when they are completely sober. Someone’s eyes could just be irritated and red. If someone chooses to perform roadsides, nerves can totally play a part and panic can make you look unsteady on your feet. The strongest evidence in these cases is a person’s BAC – whether obtained through blood or breath. By not allowing a person to reasonably change their mind and allow this important evidence to be collected, it keeps real evidence from being collected. And, it may be the evidence that sets you free!
If you or someone you love has been charged with DUI or DWAI, be smart, exercise your right to remain silent, and contact the best criminal defense attorneys from the O’Malley Law Office at 970-658-0007 to schedule a free initial consultation. Together, we can protect your future.
Photo by Karolina Grabowska