automatic refusal
A trooper has charged me with ''automatic refusal'' to take a chemical test because i had an involuntary gag reflex, (at which point she warned me that if i did it two more times it would constitute an ''automatic refusal to take a breath test'') followed by me clearing my throat and then swallowing. Nothing came up into my mouth during any of these actions, she didn't check to see if anything came up into my mouth after any of these actions. Prior to this i attempted a field breath test. The trooper did not like my effort and told me to take it again and byt the way it was not admissible in court anyway. After hearing that is was not good in court, i asked for a blood test. They never administered one to me. After requesting the blood test, they asked me to take another breath test. They did not tell me me that i would not be taking the blood test and could not ''change my mind again'' to go back to a blood test until AFTER i agreed to the second breath test. She also did not mention anything about the possibility of an automatic refusal. Is there such a thing as an ''automatic refusal''? Does involuntary actions count against such a thing? Am i guilty of refusal if i ask for a blood test and they do not give it to me.
1 Answer from Attorneys
Re: automatic refusal
You have several issues that may win your case. Colorado law says that if you choose a breath test, but cannot perform it due to a medical condition, then they should test your blood. Colorado law says that if you choose a blood test, then they have to give you a blood test. The only time this does not apply is if you previously chose a breath test and there is not enough time to complete the blood test. Police officers often get this wrong.
There are defenses at DMV and in the criminal case. If you have not yet requested a DMV hearing, please go to your local DMV office and tell them you recently got a DUI and want to request a hearing. They will fill out a form and ask you if you want the officer present - YOU DO NOT. This request will allow you to drive until the hearing and if we win, you will not lose your license. If you do not request a hearing within 7 days of your arrest, then you lose your license for 1 year and do not get to contest it.
Please contact me if you want to hire an attorney.
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