8.5 Express Consent Law (C.R.S. § 42-4-1301.1), SFST Protocols & Refusals

Express Consent Law (C.R.S. § 42-4-1301.1), SFST Protocols & Refusals

Investigating impaired driving investigations requires adherence to rigorous constitutional, statutory, and scientific testing protocols. The Colorado Express Consent Law establishes the administrative and evidentiary rules governing chemical testing of breath and blood. Simultaneously, peace officers utilize the National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Testing (SFST) battery to evaluate psychophysical impairment, establish roadside probable cause, and document reliable court testimony.

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1. Colorado Express Consent Law (C.R.S. § 42-4-1301.1)

Colorado statutory law establishes that operating a motor vehicle on public roadways is a regulated privilege conditioned upon compliance with implied chemical testing mandates.

The Statutory Express Consent Mandate

Under C.R.S. § 42-4-1301.1(1), any person who drives any motor vehicle upon the streets and highways and elsewhere throughout the State of Colorado is deemed to have given express consent to the chemical test of their breath or blood for the purpose of determining the alcoholic or drug content of their system.

                             EXPRESS CONSENT PREREQUISITES
        ┌─────────────────────────────────────────────────────────────────┐
        │ 1. Lawful Traffic Stop / Contact                                │
        │ 2. Probable Cause to believe driver operated vehicle under      │
        │    the influence of alcohol, drugs, or both (DUI/DWAI/UDD)      │
        │ 3. Lawful Custodial Arrest Effectuated                          │
        │ 4. Formal Advisement & Chemical Test Selection Offered          │
        └─────────────────────────────────────────────────────────────────┘

Choice of Chemical Test (Alcohol vs. Drug Suspicion)

• Suspected Alcohol Impairment (C.R.S. § 42-4-1301.1(2)(a)(I)):
  • The driver holds the statutory right to choose either a Breath Test or a Blood Test.
  • Once the driver selects a test, they are bound by that election; they cannot arbitrarily change tests if doing so causes delay.
  • Evidential Breath Alcohol Test (EBAT): Administered on a certified evidential instrument (Intoxilyzer 9000) by a certified operator in compliance with Colorado Department of Public Health and Environment (CDPHE) Rule 5 CCR 1005-2, requiring a continuous 20-minute deprivation/observation period prior to testing (ensuring no belching, regurgitation, smoking, or oral intake).
• Suspected Drug Impairment / Polysubstance (C.R.S. § 42-4-1301.1(2)(b)(I)):
  • If the arresting officer has reasonable grounds to suspect that the driver is impaired by drugs or a combination of alcohol and drugs, the officer has the statutory authority to require the driver to submit to a blood test.
  • Because evidential breath instruments detect only volatile ethanol and are incapable of identifying cannabis, narcotics, depressants, or stimulants, a driver suspected of drug DUID cannot demand a breath test to evade blood toxicology.

Incapacitated, Unconscious, or Deceased Drivers (C.R.S. § 42-4-1301.1(2)(b)(II))

• Under statute, any person who is dead, unconscious, or in a condition rendering them incapable of refusal is deemed NOT to have withdrawn consent.
• Constitutional Search Warrant Rule (Missouri v. McNeely, 569 U.S. 141; Mitchell v. Wisconsin, 139 S. Ct. 2525): The natural dissipation of alcohol in the bloodstream does not create a per se exigency justifying a warrantless non-consensual blood draw. Except in narrow situations where an unconscious driver requires urgent medical transport preventing warrant acquisition, peace officers must obtain a search warrant (or establish voluntary consent) before conducting a forced or involuntary blood draw.

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2. Chemical Test Refusal, PDD Designation & Legal Consequences

A driver retains the physical power to refuse chemical testing, but exercising that refusal triggers severe administrative penalties and criminal evidentiary consequences.

What Constitutes a Statutory Refusal?

1. Express Verbal Refusal: Stating "No," "I refuse," or declining to answer;
2. Conditional or Qualified Refusal: Demanding to speak to an attorney prior to testing, demanding to see a doctor first, or insisting on conditions not provided by statute;
3. Conduct-Based Refusal / Obstruction: Intentionally blowing around the Intoxilyzer mouthpiece, providing repeated insufficient breath samples without medical cause, or physically fighting medical phlebotomists.

┌────────────────────────────────────────────────────────────────────────┐
│                     CONSEQUENCES OF CHEMICAL TEST REFUSAL              │
├───────────────────────┬──────────────────────┬─────────────────────────┤
│ Violation Tier        │ Administrative Loss  │ Additional Requirements │
├───────────────────────┼──────────────────────┼─────────────────────────┤
│ 1st Chemical Refusal  │ 1-Year Revocation    │ Mandatory PDD / IID     │
│ 2nd Chemical Refusal  │ 2-Year Revocation    │ Mandatory PDD / IID     │
│ 3rd+ Chemical Refusal │ 3-Year Revocation    │ Mandatory PDD / IID     │
└───────────────────────┴──────────────────────┴─────────────────────────┘

Form DR 2487 & Notice of Revocation (Form DR 2420)

When a driver refuses chemical testing, the arresting officer serves the driver with the DR 2487 (Express Consent Advisement) and DR 2420 (Notice of Revocation), confiscates the driver's physical license certificate, issues a 7-day temporary driving permit, and forwards the surrender documents to the Department of Revenue.

Persistent Drunk Driver (PDD) Classification (C.R.S. § 42-2-126(2)(h))

Colorado law automatically classifies an individual as a Persistent Drunk Driver (PDD) under any of the following circumstances:

1. Anyone who refuses to submit to a chemical test of breath or blood upon lawful request under Express Consent;
2. Anyone whose chemical test reveals a BAC of 0.150 or higher (High-BAC Offender);
3. Anyone convicted of a second or subsequent impaired driving offense.

• Statutory PDD Consequences: Mandatory installation of an approved Ignition Interlock Device (IID) for a minimum of 2 continuous years upon license reinstatement, completion of mandatory Level II Alcohol and Drug Education/Therapy, and maintaining SR-22 high-risk insurance.

Evidentiary Value in Criminal Court (C.R.S. § 42-4-1301(6)(d))

Statute explicitly provides that if a person refuses to submit to a chemical test as required by Express Consent, evidence of that refusal is admissible in any criminal trial for DUI or DWAI. The prosecution may argue to the jury that the refusal demonstrates consciousness of guilt—that the defendant refused testing because they knew the test would confirm their illegal intoxication.

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3. NHTSA Standardized Field Sobriety Testing (SFST) Battery

The NHTSA SFST battery is a scientifically validated set of three psychophysical tests administered roadside under standardized conditions to evaluate divided attention, central nervous system depression, and physical coordination.

Voluntary Nature of SFSTs: In Colorado, Standardized Field Sobriety Tests are voluntary roadside screening tools. A driver is not legally penalized under Express Consent for declining roadside SFSTs; Express Consent statutory penalties apply strictly to post-arrest chemical tests of breath or blood.

                           THE NHTSA SFST 3-TEST BATTERY
        ┌──────────────────────────────┬──────────────────────────────┐
        ▼                              ▼                              ▼
  HORIZONTAL GAZE NYSTAGMUS       WALK AND TURN                  ONE LEG STAND
  (HGN) — 6 TOTAL CLUES          (WAT) — 8 TOTAL CLUES          (OLS) — 4 TOTAL CLUES
  • 3 Clues Per Eye              • Divided Attention Test       • Divided Attention / Balance
  • Decision: 4+ Clues           • Decision: 2+ Clues           • Decision: 2+ Clues
  • 88% Reliable for ≥0.08       • 79% Reliable for ≥0.08       • 83% Reliable for ≥0.08

A. Horizontal Gaze Nystagmus (HGN)

• Physiological Basis: Involuntary jerking of the eyeballs as they gaze laterally toward the side. Magnified by Central Nervous System (CNS) Depressants (alcohol, barbiturates), Inhalants, and Dissociative Anesthetics (PCP, ketamine).
• Mandatory Pre-Test Medical Screening:
  1. Check for equal pupil size (rule out anisocoria / brain injury);
  2. Check for resting nystagmus (rule out neurological / medical conditions);
  3. Check for equal tracking (smoothly follow stimulus with both eyes).
• The Three Validated Clues (Assessed in Each Eye = 6 Total Clues):
  1. Lack of Smooth Pursuit: Eyeball jerks or stutters noticeably while tracking stimulus moving smoothly across horizontal plane (speed of ~2 seconds out, ~2 seconds back).
  2. Distinct and Sustained Nystagmus at Maximum Deviation: Distinct, continuous jerking observed when the eye is moved to maximum lateral gaze and held for a minimum of 4 continuous seconds.
  3. Onset of Nystagmus Prior to 45 Degrees: Jerking begins before the eye reaches a $45^\circ$ angle of gaze (indicating substantial intoxication).
• Decision Point: 4 or more clues indicates BAC $\ge 0.08$ with 88% scientific reliability.
• Vertical Gaze Nystagmus (VGN): Evaluated by moving stimulus vertically upward. Presence indicates a high dose of alcohol/depressants for that individual or the ingestion of dissociative anesthetics or inhalants.

B. Walk and Turn (WAT)

• Test Structure: Divided attention test evaluating mental concentration, verbal comprehension, and motor control across two distinct phases: Instruction Stage and Walking Stage (9 heel-to-toe steps out along a line, pivot turn, 9 heel-to-toe steps back).
• The Eight Validated Clues:
  1. Instruction Phase: Cannot keep balance while listening to instructions (feet break instructional heel-to-toe stance);
  2. Instruction Phase: Starts too soon (begins before officer finishes instructions);
  3. Walking Phase: Stops while walking to regain balance;
  4. Walking Phase: Misses heel-to-toe (gap $> 0.5$ inch between heel and toe);
  5. Walking Phase: Steps off the line;
  6. Walking Phase: Uses arms for balance (raises arms $> 6$ inches from sides);
  7. Walking Phase: Improper turn (fails to keep lead foot planted or turns incorrectly);
  8. Walking Phase: Incorrect number of steps (takes more or fewer than 9 steps in either direction).
• Decision Point: 2 or more clues indicates BAC $\ge 0.08$ with 79% scientific reliability.

C. One Leg Stand (OLS)

• Test Structure: Timed divided attention test requiring the subject to raise either foot approximately 6 inches off the ground with toe pointed forward, keeping eyes on the elevated foot, while counting out loud ("one thousand one, one thousand two...") for a timed period of 30 seconds.
• The Four Validated Clues:
  1. Sways while balancing (side-to-side or back-and-forth movement);
  2. Uses arms for balance (raising one or both arms $> 6$ inches from sides);
  3. Hops to maintain balance;
  4. Puts foot down one or more times during the 30-second test.
• Decision Point: 2 or more clues indicates BAC $\ge 0.08$ with 83% scientific reliability.

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4. SFST Battery Validation Summary Table

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5. Preliminary Breath Testing (PBT) vs. Evidential Testing

Peace officers must clearly understand the evidentiary and operational distinctions between roadside Preliminary Breath Testers and station-based Evidential Breath Alcohol Testers.

┌────────────────────────────────────────────────────────────────────────┐
│                     PRELIMINARY VS. EVIDENTIAL BREATH TESTING          │
├──────────────────────────────────┬─────────────────────────────────────┤
│ PRELIMINARY BREATH TEST (PBT)    │ EVIDENTIAL BREATH TEST (EBAT)       │
├──────────────────────────────────┼─────────────────────────────────────┤
│ • Handheld roadside screening    │ • Certified laboratory instrument   │
│   device (e.g., Alco-Sensor)     │   (Intoxilyzer 9000)                │
│ • Voluntary roadside test        │ • Express Consent statutory test    │
│ • INADMISSIBLE at criminal trial │ • FULLY ADMISSIBLE at trial to prove│
│   to prove defendant's guilt     │   BAC per se & impairment           │
│ • Admissible ONLY in pretrial    │ • Governed by strict CDPHE 5 CCR    │
│   hearings for Probable Cause    │   1005-2 20-min observation rules   │
└──────────────────────────────────┴─────────────────────────────────────┘

• Statutory Evidentiary Bar (C.R.S. § 42-4-1301(6)(i)): The results of a preliminary chemical breath test (PBT) administered roadside cannot be used in any court as evidence in any criminal action, except on the issue of whether the officer had probable cause to make an arrest. An officer must never testify to the numerical PBT result before a jury in a criminal trial.