Our client (the defendant) was stopped for speeding, 55 in a 45. The officer noted a very strong odor of unknown alcoholic beverage, slurred speech, bloodshot and watery eyes. Defendant admitted drinking alcohol. Defendant initially refused to take either a blood or a breath test and so the officer drove him to the Larimer County Detention Center. While at the LCDC, the defendant recontacted the officer and told him that he would take a blood test. The officer said, “No, you’ve already refused. If you want, I’ll let you take a breath test, but we’re not going to leave the detention center to go to the hospital for you to do a blood draw.” Defendant then did a breath test which was above the legal limit. At the drivers license hearing I argued that the defendant effectively recanted his refusal by recontacting the officer and telling him he would do a blood test and there was still plenty of time to take the test within two hours. I drew on language from the statute, stating that if an individual request the test be a blood test, then the test shall be of his or her blood. I also argued that once the officer invoked the Express Consent Law, that that gave the defendant the right to elect a blood test and that the police officer’s refusal to give the defendant his elected test, should not result in a revocation. The hearing officer agreed, dismissing the action, and returning my client’s driving privileges to him.
on January 9, 2016