Colorado DUI/DWI Rights (2026)

Researched by , Founder & Head Researcher

Primary sources cited; not legal advice.

Source: 4th Amendment, U.S. Constitution (unreasonable search and seizure). 5th Amendment (right against self-incrimination). Birchfield v. North Dakota, 579 U.S. 438 (2016) — breath tests OK without warrant, blood tests require warrant. Missouri v. McNeely, 569 U.S. 141 (2013) — natural dissipation of alcohol alone does not create exigent circumstances for warrantless blood draw. BAC limits: 23 U.S.C. § 163 (federal incentive for 0.08% standard). Implied consent and DUI penalties are governed by state law.

About this article

Sourced from primary statutes (U.S. Code, CFR, state compiled statutes) and official government agency guidance. Written in plain language for general understanding — this is educational content, not legal advice. Our editorial standards

Colorado Law

Primary statute: C.R.S. § 42-4-1301

How Colorado differs from federal law

Colorado DUI law has a distinctive two-tier structure — a lesser impaired-driving offense sitting below the familiar 0.08 threshold:

  • DUI (C.R.S. § 42-4-1301): driving with a BAC of 0.08 or more at the time of driving or within two hours after is DUI per se.
  • DWAI is not a 0.05 BAC offense. DWAI means driving after consuming alcohol or drugs that affects you "to the slightest degree" so that you are less able than you ordinarily would be to drive safely. A BAC of more than 0.05 but less than 0.08 gives rise to a permissible inference that your ability was impaired — that is evidence, not an automatic offense, and DWAI can be proved on other evidence too.
  • Express consent (C.R.S. § 42-4-1301.1): Colorado uses "express consent" rather than "implied consent." Refusing a chemical test triggers revocation under C.R.S. § 42-2-126 of 1 year for a first violation, 2 years for a second, and 3 years for a third or subsequent.
  • Sobriety checkpoints are permitted in Colorado — the state has not banned them. Whether a particular checkpoint was validly planned and conducted is a fact-specific question for your defense attorney.
  • 7 days to request the DMV hearing — and it runs from the notice, not the arrest. C.R.S. § 42-2-126 requires the request in writing within seven days after the day the person receives the notice of revocation.
  • First DUI penalties (C.R.S. § 42-4-1307): 5 days to 1 year in jail (the mandatory minimum may be suspended on completion of treatment), a fine of $600 to $1,000, and 48 to 96 hours of useful public service, which cannot be suspended. A first excess-BAC revocation is 9 months.
  • First DWAI penalties (C.R.S. § 42-4-1307): 2 days to 180 days in jail, a fine of $200 to $500, and 24 to 48 hours of useful public service.
  • Persistent drunk driver (C.R.S. § 42-1-102(68.5)): a BAC of 0.15 or more, two or more alcohol-related violations, continuing to drive under a restraint, or refusing testing all qualify — triggering an ignition interlock requirement and enhanced consequences.

Additional Steps in Colorado

Request the DMV hearing in writing within 7 days of receiving the notice of revocation — this is separate from your criminal case and is easy to lose by default. Contact a Colorado DUI defense attorney — the Colorado Bar Association is at (303) 860-1115. The Colorado State Public Defender provides representation for qualifying defendants at (303) 764-1400.

Relevant Law: C.R.S. § 42-4-1301 (DUI/DWAI). C.R.S. § 42-4-1301.1 (express consent). C.R.S. § 42-4-1307 (penalties). C.R.S. § 42-2-126 (revocation and 7-day hearing request). C.R.S. § 42-1-102(68.5) (persistent drunk driver).

Federal baseline: DUI/DWI Rights nationwide

What is this right?

DUI law is the area where regular constitutional protections collide hardest with the state's interest in keeping drunk drivers off the road. You still have the right to remain silent, the right to an attorney, and Fourth Amendment protections — but every state also has an implied consent law attached to your license. The deal is: by driving on public roads, you've already consented to a chemical test (breath, blood, or urine) if you're lawfully arrested for DUI. Refuse, and you lose your license automatically — typically 6 months to a year for a first refusal, longer for repeats — regardless of whether you were actually impaired.

The legal BAC limit is 0.08% in 49 states and D.C. for drivers 21 and older. Utah dropped to 0.05% in 2018 and is still the only state at that level. Commercial drivers sit at 0.04%, and most states have zero-tolerance laws for under-21 drivers (0.00–0.02%). The Supreme Court drew a key line in Birchfield v. North Dakota (2016): breath tests can be required after a lawful DUI arrest without a warrant, but a blood draw requires either consent or a warrant. Missouri v. McNeely (2013) added that the natural dissipation of alcohol in your bloodstream is not, by itself, an emergency that justifies a warrantless blood draw.

When does it apply?

Your rights apply at every stage of a DUI encounter, and the rules differ by stage:

  • The stop. Police need reasonable suspicion of a traffic violation or impaired driving to pull you over. DUI checkpoints have to follow state-specific constitutional procedures.
  • Field sobriety tests. Walk-and-turn, one-leg stand, horizontal gaze nystagmus — these are generally voluntary in most states. Declining them may be noted in the report but usually carries no automatic legal penalty.
  • Portable roadside breathalyzer (PBT). Also typically voluntary, and the results are often inadmissible at trial — police use them to establish probable cause for arrest, not to prove the case.
  • Post-arrest chemical test. This is the one that matters. Breath at the station, or blood or urine if requested. Under implied consent laws, refusing this triggers automatic license suspension — usually 6 months to a year for a first refusal — and in some states it's an additional criminal charge.

What people get wrong:

  • "I have to do the roadside tests." Field tests and the roadside PBT are generally voluntary. The implied-consent penalty attaches to the post-arrest chemical test, not the field stuff.
  • "If I refuse everything, they can't prove the case." Refusal of the post-arrest test costs you your license automatically and can be introduced at trial as consciousness of guilt. Police can also get a warrant for a blood draw, especially in states with on-call magistrate hotlines.
  • "Under 0.08% means I'm fine." No. You can still be charged with DUI on observed impairment alone, and any controlled substance in your system can support a charge regardless of alcohol level.
  • "DUI checkpoints are illegal." The Supreme Court upheld them in Michigan Dept. of State Police v. Sitz (1990), though Texas, Oregon, Idaho, and a few others have banned them under their own state constitutions.

What to Do If You're Stopped for DUI

Step 1: Be calm and short. License, registration, insurance — yes. You have to identify yourself during a traffic stop. Beyond that, less is more.

Step 2: Don't answer the drinking question. "How much have you had?" is the question every DUI confession starts with. "I respectfully decline to answer questions without an attorney present." That's the whole sentence.

Step 3: Know which tests you can decline. Field sobriety tests and the roadside PBT — generally yes, you can politely decline (though you should know your specific state's rules). The post-arrest chemical test at the station is where implied consent kicks in, and the consequences of refusal are real.

Step 4: After arrest, ask for a lawyer immediately. "I want to speak with a lawyer before making any decisions." Then say nothing else.

Step 5: Move fast on the DMV deadline. Many states give you only 10 to 15 days from arrest to request an administrative hearing on your license suspension. Miss that and the suspension is automatic, even if the criminal case gets dismissed. Call a DUI attorney before that window closes.

What should you NOT do?

Don't argue or physically resist. Challenges go through the courts. Resistance creates new charges and gives the prosecutor a stronger story.

Don't volunteer. "I only had a couple" is an admission you were drinking. Anything you say goes on the dashcam audio, which becomes Exhibit A.

Don't assume conviction is inevitable. DUI cases get beat all the time: no reasonable suspicion for the stop, improperly administered tests, breathalyzer calibration logs, missing implied-consent warnings, blood draw without warrant or consent. A DUI defense lawyer who knows the local PD's machines and procedures can find issues you wouldn't see.

Don't miss the DMV hearing. The criminal case is one fight. The license suspension is a separate administrative fight with its own short deadline. Lose that deadline and you can win the criminal case and still be unable to drive.

You shouldn't have to hire a lawyer to assert your rights.

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Common Questions

Do I have to take a breathalyzer?

Under every state's implied-consent law, refusing a chemical test after a lawful DUI arrest usually means an automatic license suspension, even if you're acquitted. A roadside 'preliminary' breath test is sometimes optional, but the post-arrest test carries refusal penalties. Check your state's section above.

Can I refuse field sobriety tests?

In many states the roadside physical tests (walk-and-turn, one-leg stand) are voluntary, and politely declining avoids giving the officer evidence — but it may still be noted and won't stop an arrest. This differs from the post-arrest chemical test. See your state's section above.

Can police take my blood without a warrant?

Generally no. The Supreme Court held that a warrantless blood draw usually isn't allowed merely as a search incident to a DUI arrest, while a breath test can be. In special circumstances rules differ. Your state's section above explains local law.

What happens if I refuse the test?

Refusal typically triggers an automatic license suspension under implied-consent law — often longer than for a first DUI — and the refusal can sometimes be used as evidence. In some states refusing a breath test is itself a crime: under Birchfield v. North Dakota (2016) a state may impose criminal penalties for refusing a warrantless breath test, but not for refusing a warrantless blood draw. Penalties vary; see your state's section above.

Should I answer questions at a DUI stop?

Be polite and provide your license and registration, but you don't have to answer 'how much have you had to drink?' You can say you'd prefer to speak with a lawyer, and you shouldn't admit to drinking. Your state's section above notes local procedures.

DUI/DWI Rights in other states

Same topic, different jurisdiction. Pick the one that applies to you.

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