circumstances
if there are no unusual circumstances to prevent a blood test from being taken after a breathalizer was given and was requested by the arrested person and denied by the officer did he violate my rights and can i use it in court to fight the breathalizer findings?
3 Answers from Attorneys
Re: circumstances
no
Re: circumstances
Depends on what "Breathalizer" you are talking about. Was it a portable breath test(PBT) or a stationary "Intoxylizer" test. Generally, you get a choice of either a blood or breath test and you can't change once you have chosen one. The PBT doesn't count toward that choice however. Please call at 303.806.5104 if you have additional questions.
Re: circumstances
Well, the breath test is coming in. You can argue to a jury that the blood test would be more accurate and prudence requires that it be given if asked for, other states allow this, but there is no law in Colorado stating that you are allowed a 2nd test.
If there is a reason why the breath test may be inaccurate and some evidence that it does not fit the other commons signs of alcohol use that you did or did not exhibit, then it would be reasonable for the officer to allow the gold standard test.
Breath tests are not perfect. This is because they do not measure alcohol, but instead measure the CH3 molecule and many substances have CH3 other than alcohol. The filters help, but do not save the test.
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