Richard Nedlin: Guest opinion

We left off last time with the feel of cold steel on your wrists as you were placed under arrest (“A look at the dreaded field sobriety test,” March 3, The Aspen Times).

Now, as you are sitting in the back of the police car, law enforcement will inform you of a very important choice you have to make. As a driver of a motor vehicle on the streets and highways of Colorado, you have been deemed to have expressed consent to take either a blood or breath test.

Colorado’s express-consent law requires any driver to consent to a chemical test if a police officer has reasonable grounds to believe the person is driving under the influence or his ability to operate a motor vehicle is impaired because of alcohol, drugs or both. However, if law enforcement believes that your impairment is due to drugs, or a combination of both drugs and alcohol, they may request you take a blood, saliva or urine test in order to determine what drugs, and their amounts, are in your system.

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If you refuse to take any of the tests offered, you will be told that your license will be revoked automatically for 12 months. Additionally, if you do choose to refuse to take the test and there is a subsequent trial, that refusal is admissible evidence. It is important to be aware that you do have the right to recant your refusal, and if you choose to do so, law enforcement must give you your test of choice so long as it is within the proper time parameters.

You also might be read your Miranda rights, which state, among other things, that you have the right to remain silent and anything you say can and will be used against you in a court of law. If you are read Miranda and choose to remain silent, law enforcement must not ask you any questions or make statements to you that may lead to an incriminating response. If they do ask you questions and you do make an incriminating statement, it is possible that those statements may be suppressed.

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Alternatively, if you are not read Miranda, law enforcement will know not to ask any questions, so be aware that any voluntary and incriminating statements that you do make can and will be used against you. I have seen many times a person under arrest in the back of the car make incriminating statements, due to the fact that the uncomfortable silence gets the best of them, and they feel the need to say something or explain what happened.

If you choose a blood test, you will be taken to Aspen Valley Hospital and a phlebotomist will take a blood kit, provided by the Colorado Department of Health and Environment, and draw two vials of blood from your arm. There is a strict protocol and procedure for sealing, storing and mailing the vials after they are filled. If there is any deviation of those procedures, it might end up invalidating the blood test. The analysis of the blood can take as long as four months, so it will lengthen the time of the case.

If you choose to take a breath test, a machine called an Intoxilyzer will be used to determine your breath-alcohol content. The intoxilyzer is a typewriter-sized instrument that has a tube on the end of it, into which you will blow twice. The lower of the two readings will be used as your recorded value.

You will have to take a deep breath and blow very hard; it is the deep lung air that is being tested, and a short, shallow breath will not create enough air volume to get a reading. If law enforcement feels that you are taking shallow breaths on purpose, authorities might deem that as a refusal, which will cause the one-year license revocation.

As with the blood test, there is a checklist and protocol that must be followed by law enforcement along with proper certifications of the machine itself. If any procedures or certifications are out of date or done incorrectly, that also can lead to the inadmissibility of the test. One advantage to the breath over the blood test is the immediacy of the results, so if you do register less than a .05 reading there is no legal basis for an alcohol-related driving offense, and you will be released.

Next time, I will discuss how much mandatory jail time you might be facing, the alcohol classes you will have to take and what kind of deal you can expect from the District Attorney’s Office.

Richard Nedlin is a former prosecutor who currently practices defense law in Aspen. His column runs monthly in The Aspen Times.