A TV news investigation by CBS4 in Denver, Colorado has revealed that some DUI criminal cases as well as some potential drivers license suspension hearings have been dismissed because police have refused to provide suspects with a breath test. Some officers are reluctant to administer breath tests because of their concern for their own safety.
Unlike some other states (such as Tennessee), Colorado law allows a DUI suspect to be given the choice of a breath test or blood test upon arrest unless the test cannot be given due to “extraordinary circumstances.” Colorado DUI defense lawyers maintain that the law requires that a breath test be provided because the Colorado Department of Public Health and Environment have deemed the administration of a breath test to be safe. Nonetheless, some police departments believe that COVID-19 constitutes an “extraordinary circumstance” and have stopped administering breath tests.
Therefore, it is more difficult for the prosecution to prove impairment, and certainly the level of alcohol intoxication, without a chemical test. This may leave the judge without any choice except to dismiss the case.
Many states allow the arresting officer to decide whether to administer a blood test, breath test, or occasionally, a urine test. Accordingly, this issue has not arisen in those states. Tennessee DUI law falls into this category. In states providing the option to the officer instead of the suspect, if the driver were to refuse a blood test, a search warrant could be obtained and a blood sample may be forcibly extracted, if necessary.
About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,500 DUI defendants. Among the many honors bestowed upon him, Steve has served as Dean of the National College for DUI Defense, Inc. (NCDD) and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee. Steve was the first lawyer in Tennessee to be Board Certified as a DUI Defense Specialist by the NCDD.
He is the author of DUI: The Crime & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 8th edition (Wolters Kluwer/Aspen). Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions. He is a popular international speaker, having spoken at legal seminars in 30 states, the District of Columbia and six foreign countries. After being named a Fulbright Scholar, Steve was honored to teach as an Adjunct Professor at the University of Latvia Law School in the capital city of Riga, Latvia during the Spring Semester of 2019. If you would like to contact the author, please visit his website at www.tndui.com.
