Denver DUI Attorney – Blood Tests vs. Breath Tests

Denver DUI Attorney, Thomas Nellessen, presents the latest Supreme Court ruling on alcohol testing.

There have been numerous issues to question when dealing with alcohol testing issues:

1. Which test more reliable,

2. Do I have to take a test,

3. What if I refuse the officer’s request,

4.  What will DMV do if I refuse a test, etc.

Well, the United States Supreme Court just ruled on a very important issue that will probably cause extra confusion for a while.  The case is BIRCHFIELD v. NORTH DAKOTA.   This case was argued on April 20, 2016, but the final decision just came down today, June 23, 2016.  (Please note that there were 3 cases involved here.  Together with the Birchfield case were the cases of Bernard v. Minnesota, on certiorari to the Supreme Court of Minnesota, and Beylund v. Levi, Director, North Dakota Department of Transportation, another North Dakota case.  Each of these cases involved a person being arrested for DUI and then being asked to comply with the “Expressed Consent” laws of the particular states.  In both North Carolina and Minnesota, it is a separate crime to refuse an alcohol test related to a DUI charge.

The United States Supreme Court held that in part that  the “taking a blood sample or administering a breath test is a search governed by the Fourth Amendment.”   Clearly, Blood and breath testing are quite different.  Breath tests are fairly non-intrusive and merely involve blowing into a tube to get a breath result.  However, a blood test is much more intrusive as there is a piercing of the skin to extract a blood sample.  This is much more intrusive to a person; and thus, the Supreme Court held that the “Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.”  Because of the intrusiveness of the blood test, a warrant is required.

This new ruling will apply throughout the country, including here in Colorado.  Soon you will see procedures created for law enforcement officers to obtain warrants on the fly.  It may take some time before these new procedures are developed, but look for them in the very near future.



Denver DUI and Criminal Defense Attorneys| The Nellessen Law Office

Arrested at Roadside

If you get arrested, call the Nellessen Law Office TODAY!The Nellessen Law Office is a Denver DUI defense and Denver criminal defense law firm. We are located in the LoDo area of Denver, Colorado,  and we are here to help you through the most difficult times in your life. With are experience in handling DUI and other criminal matters, the Nellessen Law Office is a ready to fight for you. We have been providing skilled legal representation for over 20 years to individuals facing DUI and criminal charges.  Whether it is a DUI or DWAI offense, a drug related charge, cases involving weapons, domestic violence, prostitution, or all other felony, misdemeanor and traffic matters, we will work for you./ Contact us through our website or through this blog, or call us at 303-284-5781.Remember, no offense is minor when you are the one charged, so it is very important that you speak with an experienced DUI or criminal attorney. Experience is crucial for an attorney representing individuals in criminal cases.  Incompetence in a criminal case may be particularly devastating to the client’s freedom and liberties.  Perhaps more than any other area of law, retaining an attorney early on in a criminal defense case is of utmost importance.  The longer your attorney has to handle and prepare your defense.  So, contact the Nellessen Law Office TODAY!

DIU Revocation Modifications – Is DMV Easing Up?

As a DUI defense attorney, DUI related driver’s license suspensions are always a point of contention for those charged with drinking and driving related offenses.  With a blood alcohol level (B.A.C.) of OVER a .08, but under a 0.17, the Department of Motor Vehicles in the State of Colorado would revoke a driver’s license for a period of 9 months.  If a revoked driver chose to bypass the 9 month license revocation, the driver, after one month of no driving, could have an “Interlock device” placed in his vehicle and could drive for the remaining 8 months.  If the driver complied with all of the rules and regulations set forth for use of the Interlock device, the Department of motor Vehicles could allow the removal of the device after FOUR months of use.

If a driver’s B.A.C. was over the 0.17 level, then the driver would have to have the Interlock device on his vehicle for a period of 2 years.  (I find it interesting that a B.A.C. of 0.169 would allow an 8 month interlock suspension while a B.A.C. of .170 or greater would require a 2 year Interlock use.)

Finally, in cases where a driver REFUSED to take a blood or breath test, the Department of Motor Vehicles would revoke a license for a period of ONE YEAR.  This revocation would be WITHOUT any ability to make use of an interlock device. A strict one year, no driving suspension.  Additionally, an additional year of no driving would be added if the driver was convicted of a 12 point DUI offense.

Now we have House Bill 1168 (2012 Colo. HB. 1168), which changes what we have come to expect from the Department of Motor Vehicles, and eases some of the restrictions on Colorado drivers.  In Colorado, House Bill 1168 repealed and reenact, with amendments, Colorado Revised Statute, §42-2-132.5.

Now, C.R.S. §43-2-132.5 reads as follows:

 §42-2-132.5. Mandatory and voluntary restricted licenses following alcohol convictions – rules. (1) Persons required to hold an interlock-restricted license. The following persons shall be required to hold an interlock-restricted license pursuant to this section for at least one year following reinstatement prior to being eligible to obtain any other driver’s license issued under this article:

     (a) A person whose privilege to drive was revoked for multiple convictions for any combination of a dui, dui per se, dwai, or habitual user pursuant to §42-2-125 (1) (g) (i) or (1) (i);

     (b) A person whose license has been revoked for excess b.a.c. pursuant to the provisions of  §42-2-126 when the person’s b.a.c. was 0.17 or more at the time of driving or within two hours after driving or whose driving record otherwise indicates a designation of persistent drunk driver as defined in section 42-1-102 (68.5).

This would lead me to believe that the 2 year interlock device requirement has been reduced to a one year time period for those whose blood alcohol level is over a 0.170.

Next, Paragraph 2 of §43-2-132.5 has been modified as follows:

(4) Persons who may acquire an interlock-restricted license prior to serving a full-term revocation. (a) (I) A person whose privilege to drive has been revoked for one year or more because of a dui, dui per se, or dwai conviction or has been revoked for one year or more for excess b.a.c. or refusal under any provision of section 42-2-126 may apply for an early reinstatement with an interlock-restricted license under the provisions of this section after the person’s privilege to drive has been revoked for one year. Except for first-time offenders as provided in subparagraph (ii) of this paragraph (a) or for persistent drunk drivers as provided in subsection (3) of this section, the restrictions imposed pursuant to this section shall remain in effect for the longer of one year or the total time period remaining on the license restraint prior to early reinstatement.

Paragraph 4 would now indicate that even if there was a refusal by a driver to take the blood or breath test, the driver could take advantage of the use of an interlock device after the person’s privilege to drive has been revoked for one year.  Clearly, an easing of situations involving refusals in the state of Colorado.

If you are faced with a DUI related motor vehicle license revocation or any other DUI related matter, contact Denver DUI attorneys, Thomas Nellessen at the Nellessen Law Office by calling 303-284-5781, or CONTACT US through our website at  As always, your initial consultation is always FREE.

Until next time,

Thomas Nellessen

Nellessen Law Office

Denver DUI and Criminal Attorney: Nellessen Law Office

The Nellessen Law Office is a Denver DUI defense and Denver criminal defense law firm.  We are located in the LoDo area of Denver, and we are here to help you through the most difficult times in your life. With over 20 years of experience handling DUI and other criminal matters, the Nellessen Law Office is a ready to fight for you.

If you are seeking a highly experienced and qualified Denver DUI attorney or a Denver criminal attorney to assist you in your legal matter, please contact us at the Nellessen Law Office.  Our rates are very reasonable and every initial consultation is FREE of charge.