How Soon Can I Get My License Back After a DUI in Colorado Springs?

The first question every DUI client asks me is always the same: “When can I drive again?”

I get it. Losing your license in Colorado Springs isn’t just inconvenient—it can cost you your job. How are you supposed to get to work at Fort Carson or Peterson Space Force Base without a car? How do you take your kids to school or get groceries when public transit barely exists here?

The good news? Colorado changed the law in 2023, and you can potentially get your license back faster than you think. The bad news? It depends on several factors, and the rules are complicated.

The Big Change That Happened in 2023

Colorado changed this law for offenses occurring on or after January 1, 2023. The current law now allows for early reinstatement as early as the first day the revocation is active.

Before 2023, everyone had to wait at least a month before they could get an interlock-restricted license. That meant a month with no driving at all: no work, no errands, nothing.

Now? After January 1, 2023, a new Colorado DUI law, Alcohol Monitoring for Impaired Driving Offenders, allows immediate license reinstatement with an interlock-restricted license instead of a mandatory one-month license suspension.

This is huge. If you took the breath or blood test and got a DUI, you can potentially drive starting day one—as long as you meet the requirements. Refusal cases still carry a no driving period before you may reinstate with an interlock device.

Did You Take the Test or Refuse It? That’s the Critical Question

Everything depends on whether you submitted to the chemical test when Colorado Springs police or State Patrol asked.

1. If You Took the Test (DUI Per Se)

Your revocation period depends on how many prior offenses you have:

• First Offense: A first offense with a test will result in a revocation of 9 months.
• Second Offense: A second offense will result in a one-year revocation.
• Third Offense: Two years or longer, depending on your record.

But here’s the takeaway: Whether you have a revocation due to a DMV Per Se hearing, or DUI conviction, you are eligible on the first day the revocation action goes active (no one-month waiting period) for violations after January 1, 2023.

That means you can get an interlock-restricted license without a waiting period as soon as the revocation becomes active. You don’t have to wait at all, if you meet the other requirements. This means a reinstatement fee, SR-22 insurance, and for high BAC offenders (.15 BAC and above), enrollment in alcohol classes.

2. If You Refused the Test

Refusing the breath or blood test comes with stiffer penalties:

• First Refusal: If a driver refuses a test of his blood, breath, saliva, or urine at the direction of a law enforcement officer, the driver’s license will be revoked for one (1) year for a first refusal
• Second Refusal: two (2) years for a second refusal
• Third Refusal: and three (3) years for a third refusal.

If you are considered a “Refusal” of a BAC test and have already served two months for the alcohol related restraint, you are then eligible for early reinstatement.

Example: When you were served the Express Consent notice you requested your hearing, but did not obtain a temporary license. You are getting credit towards the 2-month period. If you do get the temp permit awaiting the hearing, as most people do, then the two months start at the time you lose the DMV per se hearing.

So, if you refused, you’re looking at two full months with no driving whatsoever if you lose the DMV hearing. No exceptions.

The license revocation for a first-time refusal (one year) is three months longer than the license revocation for a first-time DUI (nine months). Does this revocation period really matter? Not really. What matters is how fast you can get your license back (no waiting period vs two months) and how long you must carry the interlock. With early reinstatement, the length of the revocation is much less important than those other factors.

How Long Do You Need an Interlock Device?

Once you’re eligible for reinstatement, you’ll need an ignition interlock device installed in your vehicle. This is a breathalyzer connected to your car’s ignition—you have to blow into it before the car starts, and your breath needs to be alcohol-free or the car won’t start.

More importantly, the interlock records the BAC readings and reports them back to your interlock provider. If you get too many positive tests, the system can lock you out of starting your vehicle. Additionally, if you get three positive tests in a 12-month period (3 separate months), you will have your interlock period extended by the DMV.

Note: Be very careful not to have any alcohol on your breath when you start your car. No drinking the night before, or using Nyquil, or even a mouthwash that has alcohol in it. Those can, and will, set off the Interlock device, and cause your problems.

How long you need it depends on your BAC level and offense history:

Standard First Offense (BAC under 0.15)

9-month Interlock requirement with BAC below 0.149

BUT, and this is important, you might get off the Interlock early. If you reinstated early on a first-time alcohol offense, your chemical test result was less than 0.150, and if you completed four months of successful driving (not “hot” blows, no missed blows), the Division of Motor Vehicles will send you a letter indicating that you qualify to have your interlock removed early.

So if you had a first offense with a BAC under 0.15 and you drive clean for four months—no violations, no failed tests, no tampering—the DMV will send you a letter saying you can get the device removed. You don’t even have to apply for it. They’ll notify you automatically.

That means instead of 9 months with the interlock, you could be done in just 4 months.

High BAC First Offense (0.15 or higher)

2 year interlock requirement with BAC above .15. No early removal option. You’re stuck with it for the full two years.

Second or Third Offense

Second/third-time DUI offenders are required to install an interlock device in their vehicle for 2 years. No early removal for repeat offenders either.

Refusal Cases: All refusal and multiple offense revocations, and drivers revoked for having a BAC at or greater than 0.150 are required to have ignition interlock for the full period with no early removal option.

What About People Under 21?

If you were under 21 when you got the DUI, the rules are much harsher. Colorado has zero tolerance for underage drinking and driving.

A person who is less than twenty-one years of age at the time of the offense may not apply for early reinstatement until the person’s license has been revoked for one year.

• If you lose at the DMV hearing: 1 year revocation.
• Convicted of a DUI or DWAI: 9 month revocation.

Note: These do not stack, they run concurrently. Meaning: 9 months plus 1 year loss of license, equals 1 year total.

That’s right—a full year with no driving. No interlock option. No early reinstatement.

I see this crush college students at UCCS and cadets at the Air Force Academy. One mistake, and they’re without a license for a year. It destroys internships, part-time jobs, everything.

After that year, if you were under 21 years of age at the time of the violation, are a Colorado resident, and have no other driving restraints, you may reinstate after one year of revocation, provided you install an interlock in every vehicle you own or may drive.

What You Need to Do for Early Reinstatement

Getting your license back early isn’t automatic. You have to complete several steps, and miss one test (or one positive), and you’re stuck waiting.

Early reinstatement is limited to drivers who: Are residents of Colorado; Are 21 years of age or older at the time of the violation; Have satisfied all reinstatement requirements (other than time)

Here’s the checklist for early reinstatement in Colorado Springs:

1. Wait the Required Time Period

• Took the test (after Jan 1, 2023): No waiting period
• Refused the test: Two months
• Under 21: One full year (no early reinstatement)

2. Complete Alcohol Education

You’ll need to complete a Level II Alcohol and Drug Education and Treatment program. In Colorado Springs, there are several approved providers, but you need to make sure they’re state-certified.

This isn’t a one-hour online class. It’s a serious commitment—typically 24-68 hours of education and therapy depending on your assessment level. You’ll pay out of pocket, usually $1,500-$2,500 for the full program.

3. Get SR-22 Insurance

Provide an SR-22 from your insurance company.

An SR-22 isn’t a type of insurance—it’s a certificate proving you have the required coverage. Your insurance company files it with the Colorado DMV. Expect your insurance rates to increase. I’ve seen premiums go up significantly after a DUI.

Not all insurance companies offer SR-22s. You might need to switch to a company that specializes in high-risk drivers.

4. Install the Ignition Interlock Device

You’ll need to get the interlock installed by a state-approved provider before you can drive. In Colorado Springs, several companies offer this service:

• Smart Start
• Intoxalock
• LifeSafer
• Guardian Interlock

Installation typically costs around $100-150, and then you’re looking at $75-100 per month in monitoring fees. Over two years, that’s $1,800-$2,400 just for the device.

5. Pay All DMV Fees

Colorado charges reinstatement fees that vary based on your violation:

• First DUI: $95 reinstatement fee
• High BAC or repeat offense: Additional fees apply

6. Provide Proof of Everything to the DMV

You can’t just show up at the Colorado Springs DMV at 2447 N. Union Blvd and expect them to figure it out. You need to bring:

• Proof of Level II completion
• SR-22 certificate
• Proof of interlock installation
• Payment for all fees
• Valid identification

Miss any of these, and you’re making another appointment. At the time of this post (2025), you need an appointment. And appointments can be weeks or even a month out. So, schedule it early. You can also go to other full-service DMVs like Canon City, Denver or Greeley.

The Real Costs of Getting Your License Back

Interlock Device

• Installation: $100-150
• Monthly monitoring: $75-100
• Total over 2 years: $1,900-$2,550

Level II Education Program

• Assessment: $150-250
• Classes and therapy: $1,500-$2,500
• Total: $1,650-$2,750 This will vary on the Track you receive from your alcohol evaluation)

Insurance

• SR-22 filing fee: $25-50
• Increased premiums: potentially as much as $100-300 extra per month (some are less. Shop around)
• Total over 2 years: potentially $2,400-$7,200

DMV Fees

• Reinstatement: $95+
• Various administrative fees: $50-150

Grand Total: $6,000-$12,000+ over two years

And that’s not counting the criminal case costs, attorney fees, court fines, or lost wages.

Getting License Back after DUI: Common Mistakes People Make

I’ve seen clients blow their reinstatement chances by making these mistakes:

1. Starting the Level II Program Too Late

Don’t wait until your provisional license period is almost up. The program takes months to complete. Even though you only need to be enrolled in Level II to reinstate, you do need to finish it in a timely fashion, or your license will be re-revoked.

2. Installing an Unapproved Interlock Device

Colorado has a list of approved providers. Using anyone else means starting over with a new installation and potentially extending your requirement period.

3. Failing Interlock Tests

The device records every test. If you fail or try to tamper with it, the DMV gets notified, and your reinstatement period extends. I’ve had clients add months to their requirements by making this mistake.

Here’s what counts as “successful driving” for early removal eligibility:

• No failed breath tests (under 0.025 BAC required)
• No missed rolling retests while driving
• No tampering or circumvention attempts
• No lockouts from multiple violations
• All monthly calibration appointments completed on time

One screw-up and you’re not getting early removal. I have had several clients who were close to being eligible for early removal at four months, but had a misstep in the last month. They end up doing the full 9 months instead of getting off after 4.

3. Letting SR-22 Insurance Lapse

If your SR-22 insurance lapses for even one day, your license gets suspended again immediately. Your insurance company is required to notify the DMV if your policy cancels.

4. Not Addressing Outstanding Tickets or Suspensions or Warrants

If you have any other outstanding suspensions, unpaid tickets, or holds on your license, you can’t reinstate. Colorado Springs Municipal Court and El Paso County Court records need to be clear.

What If You Can’t Afford the Interlock or Alcohol Classes?

I get asked this constantly. The interlock and education requirements are expensive, and not everyone can afford $200+ per month in additional costs.

Unfortunately, Colorado doesn’t offer much help. There are some reduced-cost options for indigent defendants, but the requirements are strict and the discounts minimal. We often get sent coupons from interlock providers, and typically have coupons for free install (or something similar) in the office.

Some options:

• Payment plans with interlock providers (most offer monthly payments)
• Income-based sliding scales at some Level II providers
• Carpooling or Uber/Lyft for work until you save up the money

The harsh reality is that if you can’t afford the interlock and education, you’re stuck without a license until your full revocation period ends.

And even then, you’ll still need the interlock to drive legally. Our bus system in Colorado Springs doesn’t cover a lot of town, and our bus routes aren’t very frequent. Public transport in Colorado Springs just isn’t a viable option for most people.

Fighting the Revocation: The Express Consent Hearing

You have seven days from your arrest to request a hearing to challenge your license revocation. This is called an Express Consent hearing or DMV hearing.

Most people miss this deadline because they don’t realize they need to act immediately. The notice the officer gives you expires fast.

At this hearing, we can challenge:

• Whether the officer had probable cause to stop you
• Whether you were properly advised of the consequences of refusal
• Whether the testing equipment was working properly
• Whether the test results were accurate
• Whether the test was completed within 2 hours of driving

Winning an Express Consent hearing means keeping your license—no revocation at all. But these hearings are technical and require an attorney who knows Colorado Springs DMV procedures inside and out. Remember: You can win at the DMV, but later lose your license in court by pleading to a DUI. Talk to your attorney about how your plea will affect your driving privileges.

I’ve won Express Consent hearings in a lot of different ways. The test was completed outside of two hours of driving, by showing that the 20-minute observation period wasn’t complied with, or that the officer didn’t follow the required procedures during the stop.

The most common way to win a DMV hearing? The officer no-shows when properly requested. This is a due process violation and a similar to a “forfeit” win for the accused.

But you have to request the hearing within seven days, or you lose that chance forever.

Can You Drive in Other States?

This is tricky. Your Colorado license is revoked everywhere—other states will honor that revocation. This is due to the Interstate License Compact. You can’t just go get a license in Wyoming or New Mexico while your Colorado license is revoked.

However, if you have an interlock-restricted license from Colorado, you can generally drive in other states—but only vehicles equipped with an interlock device. If you get pulled over in Kansas driving a car without an interlock, you’re driving on a revoked license.

What Happens at the End of Your Revocation Period?

Once you’ve completed your full revocation period, you need to fully reinstate your license. This requires:

• Completing any remaining interlock time
• Proof of Level II completion (and therapy, if required)
• SR-22 insurance (may need to continue)
• Payment of reinstatement fees
• Proof you’ve satisfied all court requirements

Even after full reinstatement, your DUI stays on your driving record for years and can affect insurance rates for several years minimum.

Important Points for Colorado Springs Drivers

Here’s what you need to remember:

If you took the test (after Jan 1, 2023)

• Eligible for interlock license day one
• 9 months revocation (first offense)
• BAC under 0.15: 9-month interlock requirement, but eligible for early removal after 4 months of clean driving
• BAC 0.15 or higher: 2 years interlock, no early removal
• Repeat offenses: 2 years interlock, no early removal

If you refused the test

• Must wait 2 months before interlock license
• 1 year revocation (first offense)
• 2 years interlock required, no early removal option

If you were under 21

• No early reinstatement
• 1 full year without driving

Start immediately

• Request Express Consent hearing within 7 days
• Enroll in Level II education program
• Get SR-22 insurance
• Research interlock providers
  

The 2023 law changes make it possible to keep driving sooner, but only if you handle everything correctly from day one. Miss a deadline or forget a requirement, and you could be stuck without a license for months.

Every DUI case I handle in El Paso County, I make sure my clients understand the license consequences right away. The criminal case is one thing—the license revocation is another battle entirely. You need to fight both.

If you’re dealing with a DUI in Colorado Springs and worried about your license, don’t wait. The seven-day deadline for the Express Consent hearing comes fast, and every day you wait makes it harder to protect your driving privileges.

This article is for educational purposes only and doesn’t constitute legal advice. License revocation rules are complex and individual circumstances vary. Colorado DUI laws continue to evolve, so consult a qualified Colorado attorney about your specific situation.

The post How Soon Can I Get My License Back After a DUI in Colorado Springs? first appeared on McDowell Law Firm.

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Marijuana Laws in Colorado Springs (2025): Why Local Rules Differ From State Law

If you’re confused about marijuana laws in Colorado Springs, you’re not alone. As an attorney practicing in El Paso County for over two decades, I regularly counsel clients about marijuana laws and charges in Colorado Springs.

Many people think that because marijuana is now “legal” in Colorado, that there are no laws regarding the possession or consumption of weed. Obviously, there are still many laws in place about marijuana, use, possession and sales, and not following the local and or state laws can land you criminal charges.

The Colorado Springs Marijuana Paradox

Ballot Question 300 authorized retail marijuana businesses to operate within the City limits beginning in April 2025. However, the ordinance prohibits facilities from selling recreational cannabis within one mile of K-12 schools, residential and child-care, or drug or alcohol treatment facilities.

No medical marijuana shops would be able to sell recreational products at their current locations under this ordinance. This means that while recreational marijuana sales are now technically allowed in Colorado Springs, the restrictive zoning makes it nearly impossible for retail stores to open.

For years, the City of Colorado Springs opted out of the sale of recreational marijuana within its jurisdiction. Medical marijuana, however, is allowed to be produced and sold to registered medical marijuana patients through licensed medical dispensaries.

This created a confusing dual system where marijuana possession was legal under state law, but you couldn’t legally purchase recreational marijuana anywhere within city limits.

What’s Legal in Colorado Springs vs. What’s Legal in Colorado

Understanding the difference between state law and local ordinances is crucial to avoiding criminal charges in El Paso County.

State Law: What Colorado Allows

Under Colorado state law, adults over the age of 21 can buy and possess up to 1 ounce of cannabis at a time. Adults over 21 can give up to 2 ounces of marijuana to another adult.

The law makes no distinction between residents of Colorado versus tourists who are visiting, in terms of the possession, purchase, or consumption of marijuana in Colorado.

This means tourists visiting Colorado from states where marijuana is illegal can legally possess marijuana in Colorado—as long as they follow state and local rules.

• Possession of more than 2 ounces but less than 6 ounces of marijuana or more than 3 ounces but less than 12 ounces of marijuana concentrate is a misdemeanor, punishable by a fine of up to $700.
  
  
• Possession of more than 6 ounces of marijuana or more than 12 ounces of marijuana concentrate is a level 4 drug felony, potentially resulting in 6 months to 2 years in prison and/or a fine of $1,000 to $100,000.

Colorado Springs Municipal Code: The Local Twist

Colorado Springs municipal code adds restrictions that go beyond state law. It is unlawful for any person to possess or openly and publicly display more than one ounce but not more than twelve (12) ounces of marijuana. While this aligns with state possession limits, the city enforces these rules strictly within city limits.

More importantly, until recently, you couldn’t buy recreational marijuana anywhere in Colorado Springs. This meant residents had to drive to Manitou Springs, Pueblo, or Denver to make legal purchases, then transport the marijuana back into Colorado Springs—a practice that created legal gray areas many people didn’t understand.

The Retail Marijuana Battle: What Changed in 2024-2025

Colorado Springs has fought a years-long political battle over retail marijuana sales. The conflict came to a head in the November 2024 election when voters faced competing ballot measures about marijuana sales in the city.

The restrictive approach continued even after voters narrowly approved sales. The cultivation and testing facilities for retail marijuana have to be 1,000 feet away from schools, treatment facilities and any “public or private daycare facility” under the proposed ordinance. The setback is slightly more restrictive than the city’s rules for medical marijuana establishments.

These strict zoning requirements effectively prevent most retail marijuana businesses from opening, even though they’re technically “legal” in Colorado Springs. When you map out all the restricted zones—schools, daycares, treatment centers, and residential areas—there’s virtually nowhere left in the city where a retail marijuana store could legally operate.

Common Marijuana Charges I Defend in Colorado Springs

Despite Colorado’s legalization, I regularly defend marijuana-related charges in El Paso County District Court and Colorado Springs Municipal Court. Here are the most common scenarios:

1. Public Consumption Violations

Public marijuana consumption remains illegal throughout Colorado, including Colorado Springs. Colorado Springs police actively enforce these violations, especially in tourist areas. Be mindful and don’t light up in Garden of the Gods, Downtown, Manitou Springs or other public places.

The penalty for public consumption in Colorado Springs can include fines up to several hundred dollars and a criminal record that could affect employment and housing.

2. Possession Over Legal Limits

While possessing up to one ounce is legal, possessing more than one ounce but less than two ounces is a petty offense in Colorado Springs. Possessing between two ounces and six ounces is a misdemeanor, and anything over six ounces can be charged as a felony.

3. DUI and Marijuana

Colorado Springs police have increased DUI enforcement for marijuana impairment. Unlike alcohol, there’s no clear legal limit for THC in your blood—prosecutors can argue any amount combined with impaired driving is sufficient for conviction.

The Colorado State Patrol and Colorado Springs Police Department use Drug Recognition Experts (DREs) to evaluate suspected marijuana-impaired drivers. These evaluations are often subjective and can be successfully challenged by experienced defense attorneys familiar with El Paso County court procedures.

Colorado does have a legal limit for marijuana in your system. If you have 5 nanograms of active THC in your system, you are presumptively under the influence.

Blood tests will also test for inactive THC metabolites, like 11-Nor-9-carboxy-Δ9-tetrahydrocannabinol (sometimes called “carboxy”) can stay in your systems for weeks after use. It is not active and does not have psychoactive effects.

4. Sales Without a License

Selling marijuana without a license remains illegal everywhere in Colorado, including Colorado Springs. This includes selling to friends, even small amounts. I’ve defended numerous cases of marijuana(and other drugs) distribution under Colorado law. In El Paso County, unlicensed marijuana sales will be prosecuted.

Special Considerations for Colorado Springs’ Military Community

Colorado Springs hosts Fort Carson, the Air Force Academy, Schriever Space Force Base, and Peterson Space Force Base. Military personnel face unique challenges with marijuana laws because marijuana remains illegal under federal law and the Uniform Code of Military Justice (UCMJ).

Even though recreational marijuana is legal under Colorado state law, service members can face:

• Court-martial proceedings for marijuana use or possession
• Administrative separation from military service
• Loss of security clearances
• Dishonorable discharge affecting future employment and VA benefits

I regularly counsel military personnel who face both civilian criminal charges in El Paso County and military disciplinary actions. The interplay between Colorado law, federal law, and military regulations creates complex legal issues requiring attorneys experienced with both systems.

I recently represented a young man who was a dependent of an active-duty service member who lived on a military installation. Although the small amount of marijuana he had on him was legal in Colorado, it was not legal to have it as he drove onto base.

Employment and Housing: The Hidden Consequences

The City of Colorado Springs’ current policies concerning the use of drugs or alcohol have not been altered by Amendment 64 as it was not intended to require employers to permit marijuana use and it specifically states: “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies.”

This means Colorado Springs employers can:

• Refuse to hire marijuana users, even for off-duty use
• Fire employees who test positive for marijuana
• Maintain zero-tolerance drug policies

Many Colorado Springs residents work for companies with federal contracts or in industries with strict drug testing requirements. A marijuana conviction can trigger employment consequences beyond the criminal penalties.

Practical Advice for Colorado Springs Residents and Visitors

Where You Can and Cannot Buy

As of late 2024 and early 2025, the City of Colorado Springs has a cap on licensed marijuana business locations. New Retail Marijuana license types can be added to only to existing licensed medical marijuana locations. This means very few, if any, retail marijuana stores will open in Colorado Springs in the near future.

For legal purchases, residents typically travel to:

• Manitou Springs (just west of Colorado Springs)
• Pueblo (45 minutes south)
• Denver metro area (60+ minutes north)

Transportation Rules

Transporting marijuana from other cities back to Colorado Springs is legal as long as you:

• Keep it in the original sealed container
• Store it in the trunk or locked glove compartment
• Don’t consume while driving
• Stay within the one-ounce possession limit

Consumption Rules

Never consume marijuana in public anywhere in Colorado Springs, including:

• Parks and trails (Garden of the Gods, Palmer Park, Memorial Park)
• Downtown streets and sidewalks
• Patios and outdoor seating at restaurants
• Parking lots or vehicles
• Hotel common areas or visible to the public

Understanding Federal vs. State vs. Local Law

The marijuana legal landscape in Colorado Springs involves three overlapping jurisdictions:

• Federal Law: Marijuana remains a Schedule I controlled substance. Federal charges are rare for simple possession but can occur on federal property (military bases, national parks, federal buildings).
  
• Colorado State Law: Recreational marijuana is legal for adults 21+ within specific limits.
  
• Colorado Springs Municipal Law: The city regulates where marijuana can be sold, consumed, and grown within city limits. These local ordinances are often more restrictive than state law.

Why You Need a Colorado Springs Attorney for Marijuana Charges

Marijuana laws in Colorado Springs require attorneys who understand the intersection of state law, local ordinances, and federal regulations. What works as a defense in Denver might fail in El Paso County courts, where prosecutors and judges take a more conservative approach to marijuana cases.

Having handled marijuana cases in Colorado Springs for over two decades, I understand how local law enforcement investigates these cases and how prosecutors present them. This local knowledge is invaluable for negotiating favorable outcomes and protecting your record.

The Future of Marijuana Laws in Colorado Springs

The legal landscape continues evolving. While Colorado Springs voters narrowly approved retail sales in 2024, the restrictive zoning requirements mean actual stores may materialize slowly. Meanwhile, law enforcement continues actively prosecuting marijuana violations, especially public consumption and sales without licenses.

If you’re facing marijuana charges in Colorado Springs or anywhere in El Paso County, don’t assume that Colorado’s legalization protects you. Local laws create complex legal issues that require experienced criminal defense representation.

The information in this article is for educational purposes only and does not constitute legal advice. Marijuana laws continue evolving, and individual cases require analysis by a qualified Colorado attorney familiar with current Colorado Springs ordinances.

The post Marijuana Laws in Colorado Springs (2025): Why Local Rules Differ From State Law first appeared on McDowell Law Firm.

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True Threats vs. Protected Speech in Colorado: Legal Meaning, Examples and Charges

You send an angry message online. You make a heated comment. You vent frustration with aggressive language. Suddenly, you’re facing criminal charges for harassment or disorderly conduct. What is protected speech under the First Amendment? What will get you served with criminal charges in Colorado?

The legal line between free speech and criminal threats has often been blurry. In 2023, the U.S. Supreme Court drew that line more clearly in Counterman v. Colorado. A case that started here in Colorado, and it made its way to the highest court in the land. The decision changed how prosecutors must prove threat cases and expanded First Amendment protections.

If you’re facing charges for threats, harassment, or stalking based on your words, understanding Counterman is crucial. Here’s what the case means for free speech and criminal law in Colorado.

The Counterman Case Facts

The Facts: Billy Raymond Counterman sent hundreds of Facebook messages to a Colorado musician named Coles Whalen over two years. The messages were disturbing:

• “Staying in cyber life is going to kill you.”
• “You’re not being good for human relations. Die.”
• “Was that you in the white Jeep?”
• “Five years of sheer hell. Over.”

Whalen didn’t know Counterman. She never responded to his messages. The messages terrified her. She cancelled shows, stopped walking alone, and feared for her safety.

The Charges

Colorado charged Counterman with stalking under C.R.S. § 18-3-602. The law prohibits repeatedly following, contacting, or making credible threats to another person in a manner that would cause a reasonable person serious emotional distress.

Counterman’s Defense

Counterman claimed his messages were protected speech. He argued the state needed to prove he intended to threaten Whalen, not just that she felt threatened. The trial court disagreed and convicted him.

The Supreme Court Decision

In June 2023, the Supreme Court sided with Counterman (sort of). The Court held that prosecutors must prove the defendant was at least reckless about whether their statements would be viewed as threats. A purely objective standard (whether a reasonable person would feel threatened) violates the First Amendment.

The Legal Standard Before Counterman

Before Counterman, Colorado used an objective test for true threats. Prosecutors only had to prove:

• A reasonable person would view the statement as a threat
• The statement would cause serious emotional distress
• The defendant made the statement knowingly

The defendant’s actual intent didn’t matter. Even if you were joking, venting, or never intended to threaten anyone, you could be convicted if a reasonable person would feel threatened.

This standard led to convictions based on misunderstood jokes, hyperbolic venting, and protected political speech.

The Legal Standard After Counterman

Now, the Colorado District Attorney must prove the defendant acted with at least recklessness regarding the threatening nature of their statements.

What Recklessness Means

• You consciously disregarded a substantial risk
• The risk was that your statement would be viewed as a threat
• You knew facts that made the threatening nature obvious
• You proceeded anyway despite that knowledge

What Prosecutors Must Prove

• The statement meets the definition of a threat
• A reasonable person would view it as threatening
• The defendant was at least reckless about whether it would be perceived as threatening

What’s Not Enough

• The victim felt threatened
• A reasonable person would feel threatened
• The defendant should have known better
• Negligence or carelessness

This subjective component protects speech that’s clumsy, poorly worded, or misunderstood, but not intended as threatening.

What Counts as a “True Threat”?

Not all threatening language is criminal. The Supreme Court has carved out categories of unprotected speech. True threats are one category.

True Threats Are

• Serious expressions of intent to commit violence
• Directed at a person or group
• Statements that communicate imminent harm
• Made intentionally, knowingly, or with reckless disregard

True Threats Are Not

• Political hyperbole
• Jokes (even tasteless ones)
• Venting frustration
• Conditional statements
• Exaggerated language
• Protected advocacy

One of the keys here is context. The same words can be criminal threats or protected speech depending on circumstances.

Protected Speech: What You Can Say

Here are a few examples of statements that would likely be considered to be protected speech under the First Amendment and Counterman.

Important Note: You can be charged with criminal behavior for many activities. Nothing in this article should be read to suggest any behavior is non-criminal in nature. These are examples of cases that may be argued as protected speech under the law. In every situation, you should discuss the facts of your case with an attorney.

• Political Hyperbole: “All politicians should be thrown out” or “The governor should be run out of town” are protected political speech, even if aggressive.
• Conditional Statements: “If you don’t leave me alone, you’ll regret it” is generally protected because it’s conditional on future action.
• Venting and Frustration: “I’m so mad I could kill someone,” expressed to a friend, is protected frustration, not a threat.
• Jokes and Sarcasm: “I’ll kill you if you’re late again!” said laughingly among friends is obvious hyperbole.
• Artistic Expression: Violent lyrics in music, violent scenes in movies, or aggressive poetry are generally protected.
• Advocacy of Illegal Action: You can advocate for illegal action in the abstract without making threats (with some exceptions).

Criminal Threats: What Crosses the Line

• Direct Threats: “I’m going to kill you” directed at a specific person can be a true threat depending on context.
• Specific Plans: “I know where you live. I’ll be waiting for you” shows planning and intent.
• Repeated Communications: Multiple messages over time, especially after being told to stop, suggest intent. This could likely be charged as harassment if it’s repeated, and there’s an intent to harass, annoy, alarm, or intimidate.
• Personal Knowledge: “I saw you at the grocery store yesterday in your green Toyota,” combined with a threat, shows surveillance and escalates concern.
• Combination of Factors: Words combined with behavior (following someone, showing up at their home) strengthen threat claims.

The “Fire in a Crowded Theater” Myth

You’ve heard the phrase: “You can’t yell fire in a crowded theater.” This supposedly proves speech has limits. But this phrase is misleading and legally outdated.

The Origin

Justice Oliver Wendell Holmes used this phrase in Schenck v. United States (1919) to uphold criminal convictions for opposing the military draft during World War I.

The Problem

The Schenck decision has been largely overturned. Brandenburg v. Ohio (1969) established much stronger free speech protections.

The Reality

You actually can yell fire in a crowded theater if there’s a fire. You can probably yell it even if there’s no fire, though you might face civil liability for resulting injuries. It’s not necessarily criminal. But it could be charged under certain municipal ordinances like disorderly conduct.

What It Really Means

Speech that creates imminent lawless action or immediate physical danger may be restricted. But the standard is very high. The speech must be intended to incite immediate illegal action and likely to do so.

Bottom Line

Don’t rely on the “fire in a crowded theater” analogy. It’s not good law and oversimplifies free speech protections. It’s still a very bad idea, and the DA may try to charge you with disorderly conduct or you could be exposed to civil liability.

Scenarios: Threat or Protected Speech?

Below are a few examples of speech applying a Counterman and Brandenburg analysis. I don’t recommend testing any of these situations out, as you can always be charged if a police officer believes that there is probable cause that you have violated the statute. It could be time-consuming and expensive to fight the charges. Let’s look at some scenarios and consider the law.

Scenario 1: “I’ll kill you for being late!”

• Said jokingly to a friend who’s chronically late
• Both parties laugh
• No history of violence
• Likely Protected: Context shows jest, no reasonable person would perceive genuine threat

Scenario 2: “I’ll kill you for being late!”

• Said angrily to an employee
• You’re the boss with power over the person
• Said in private, no witnesses
• History of hostile work environment
• Possibly Criminal: Power dynamics, lack of joking context, reasonable fear created

Scenario 3: “Politicians like you should be hanged”

• Said at political rally
• Directed at general class of politicians
• No specific person targeted
• Likely Protected: Political hyperbole, not directed at specific individual

Scenario 4: “I know where you live. You should watch your back”

• Sent via text message
• Directed at specific person
• Person has restraining order against you
• You’ve driven by their house
• Likely Criminal: Specific, personal knowledge, pattern of behavior, violates court order

Scenario 5: Song lyrics with violent content

• Rap song about violence against police
• Artistic expression
• No specific officers named
• No imminent threat
• Likely Protected: Artistic expression, no specific target, Brandenburg standard not met

Scenario 6: Multiple messages after being told to stop

• “You’ll regret ignoring me”
• “I’m watching you”
• “You can’t hide forever”
• Sent after victim said “stop contacting me”
• Likely Criminal: Pattern of behavior, continued after warning, surveillance language. This would likely be charged as harassment.

Again, I certainly don’t advocate putting these scenarios to the test, and every situation has its own details. So please be nice to each other, but if you find yourself charged with a crime that you think is protected speech under Colorado law, give me a call to discuss.

Common charges:

• Harassment
• Disorderly conduct
• Stalking
• Menacing

Colorado Stalking Law After Counterman

Colorado’s stalking statute (C.R.S. § 18-3-602) must now be applied consistent with Counterman.

What Prosecutors Must Prove

• You repeatedly followed, approached, contacted, or surveilled someone
• Your conduct would cause a reasonable person serious emotional distress
• You acted recklessly regarding whether your conduct would be perceived as threatening

What Changed

Before Counterman, prosecutors only needed to prove your conduct would cause distress. Now they must prove you acted intentionally, knowingly or recklessly about the threatening nature of your conduct.

Impact on Cases

Many borderline stalking cases will now fail. Awkward attempts at romance, persistent but non-threatening contact, and misunderstood communications have stronger defenses.

Harassment Charges in Colorado

Colorado’s harassment statute (C.R.S. § 18-9-111) also requires subjective intent after Counterman.

Types of Harassment

• Strikes, shoves, or kicks
• Follows in public
• Initiates unwanted communication
• Makes obscene gestures or comments
• Repeatedly insults or taunts

Counterman’s Impact

For threat-based harassment, prosecutors must prove knowing intent or recklessness. For non-threat harassment (following, taunting), the objective standard may still apply.

Defending Against Threat Charges

If you’re facing charges for threats, stalking, or harassment, several defenses may apply:

• Lack of Subjective Intent: You didn’t intend the statement as a threat and weren’t reckless about how it would be perceived.
• Context Negates Threat: The circumstances show your statement was a joke, hyperbole, or protected speech.
• Conditional Statement: Your statement was conditional on future action by the other person.
• Political or Artistic Expression: Your statement was political advocacy or artistic expression protected by the First Amendment.
• No Reasonable Perception: Even if you were reckless, a reasonable person wouldn’t view your statement as threatening.
• False Accusation: The alleged victim fabricated or exaggerated your statements.

Why Legal Representation Matters

Counterman changed the legal landscape for threat prosecutions. Many cases that would have resulted in convictions under the old standard now have strong defenses.

An Experienced Attorney Can

• Apply Counterman’s subjective standard to your case
• Challenge prosecution’s evidence of recklessness
• Present context showing protected speech
• Identify First Amendment defenses
• Negotiate dismissals or reduced charges based on Counterman or Brandenburg

What’s at Stake

• Criminal record
• Jail time
• Restraining orders
• Loss of gun rights
• Employment consequences
• Professional license impacts

The Broader First Amendment Picture

Counterman is part of a larger body of First Amendment law protecting speech:

• Brandenburg v. Ohio: Speech advocating illegal action is protected unless it incites imminent lawless action.
• Virginia v. Black: True threats can be criminalized, but prosecutions require proof of intent to intimidate.
• Elonis v. United States: Federal threat prosecutions require more than negligence (though Elonis left open the recklessness standard).
• Counterman v. Colorado: State threat prosecutions require at least recklessness about threatening nature.

Together, these cases establish strong protections for speech that’s angry, offensive, or even disturbing, as long as it’s not truly threatening.

Practical Advice

Before You Post, Text, or Speak

• Consider how your words could be perceived
• Avoid language about violence, even jokingly, in heated situations
• Don’t contact people who’ve asked you to stop
• Don’t combine concerning words with concerning behavior
• Remember: online communications are permanent records

If You’re Investigated or Charged

• Don’t speak to police without an attorney
• Don’t try to explain or clarify statements to investigators
• Don’t contact the alleged victim
• Don’t post about the case online
• Contact an experienced criminal defense attorney immediately

Your Next Steps

Counterman v. Colorado strengthened First Amendment protections for speech in Colorado. But the line between protected speech and criminal threats remains complex and fact-specific. Context matters. Intent matters. And experienced legal representation matters most of all.

If you’re facing charges for threats, stalking, or harassment in Colorado Springs, contact our defense team today. We understand how Counterman applies to these cases and how to build First Amendment defenses that protect your rights and your freedom.

Don’t let a misunderstood statement or overzealous prosecution destroy your future. Get experienced legal help from attorneys who understand free speech law and know how to defend threat cases in the post-Counterman landscape.

If you’ve been charged with menacing, stalking, harassment, or disorderly conduct in Colorado Springs, call our Defense lawyers at McDowell Law firm to discuss your case. Our offices are located in downtown Colorado Springs in the 1st Bank Building on the corner of Cascade Ave and Pikes Peak Ave.

The post True Threats vs. Protected Speech in Colorado: Legal Meaning, Examples and Charges first appeared on McDowell Law Firm.

from McDowell Law Firm https://mcdowellfirm.com/true-threats-vs-protected-speech-in-colorado/
https://mcdowellfirm.com/practice-area/dui-defense/

PBT vs. Breathalyzer: Understanding the Difference Between Colorado’s Two Breath Tests

You get pulled over in Colorado Springs. The officer suspects you’ve been drinking and pulls out a small handheld device. “I need you to blow into this,” he says. You think: Is this the breathalyzer test? Will this go on my record? Can I refuse?

Colorado actually uses two different breath tests during a DUI investigation. Understanding the difference between them could save your license and strengthen your defense. One is voluntary with no legal consequences for refusal. The other can trigger penalties at the DM and be used against you in court..

Here’s what you need to know about preliminary breath tests (PBT) and evidentiary breath tests in Colorado.

The Two Types of Breath Tests

1. Preliminary Breath Test (PBT)

• Small, handheld device used roadside
• Administered during initial investigation
• Taken before arrest
• Results not admissible at trial
• Completely voluntary
• No penalty for refusing
• No observation period required before test

2. Evidentiary Breath Test (Intoxilyzer)

• Large, calibrated machine at police station or hospital
• Administered after arrest
• Results admissible in court
• Subject to express consent law
• Refusal triggers automatic license revocation
• This is the “official” breathalyzer test
• 20-minute observation period

The confusion between these tests causes many people to make costly mistakes. You might refuse the voluntary roadside test thinking you’re protecting yourself, then take the station test that actually counts against you. Or maybe you’ve done the opposite. What does each choice mean, and how will it affect you in your case and at the DMV?

Misunderstanding your right to refuse a breathalyzer test in Colorado can lead to automatic license suspension and other legal consequences at the DMV and in court.

What is a Preliminary Breath Test (PBT)?

The PBT is a screening tool. Officers use it during roadside investigations to help determine if they have probable cause to arrest you for DUI.

How It Works:

• Officer asks you to blow into a small handheld device
• Device provides a digital BAC reading
• Takes about 30 seconds to complete
• Usually happens after field sobriety tests

Common PBT Devices in Colorado:

• Alco-Sensor
• Intoximeter Alco-Sensor FST
• Draeger Alcotest

What Officers Can Use It For:

• Establishing probable cause for arrest
• Deciding whether to conduct further investigation
• Supporting their observations of impairment

What It Cannot Be Used For:

• Evidence of your actual BAC at trial
• Proving you were over the legal limit
• License revocation proceedings (DMV hearings)

Why PBT Results Aren’t Allowed in Colorado Courts

Colorado law specifically prohibits PBT results from being admitted as evidence of guilt at trial. Here’s why:

Lack of Reliability

• PBTs are not as accurate as evidentiary machines
• They have wider margins of error
• Calibration standards are less stringent
• Environmental factors affect results more significantly

Not Scientifically Validated

• PBTs don’t meet Colorado’s evidentiary standards
• Haven’t undergone same testing as approved devices
• Results can vary significantly from actual BAC

Limited Purpose

• Designed only as investigative screening tool
• Not intended to measure precise BAC
• Only meant to detect presence of alcohol

The Colorado Supreme Court has consistently held that PBT results are investigative tools only and cannot be used to prove intoxication at trial.

Is Taking a PBT Voluntary?

Yes. The PBT is completely voluntary in Colorado. You can refuse it without any legal penalties.

No License Consequences

• Refusing a PBT does not affect your license
• No DMV revocation or suspension
• Express consent law does not apply to PBTs

No Criminal Penalties

• Refusal cannot be used as evidence against you
• No enhanced charges for refusing
• Officer can still arrest based on other observations independent of the PBT

What the Officer Won’t Tell You:

• PBT is voluntary (they often make it sound mandatory)
• You have the right to refuse
• Refusal has no direct legal consequences

Officers are trained to make the PBT seem required. They’ll say things like “I need you to take this test” or “Colorado law requires you to submit to testing.” This is misleading when it comes to PBTs.

I have seen hundreds of body cam tapes, and, commonly, officers won’t expressly state that a PBT is voluntary. They will often just pull out their PBT and ask the suspect to blow. I think that many people feel intimidated or want to cooperate with authority, so they just proceed with the test.

More people need to be educated about the law and the consequences surrounding preliminary breath tests, and make a decision based on that knowledge.

Should You Take a PBT When Offered?

This is a tactical decision. Here are the considerations:

Arguments for Refusing the PBT

• Results help officer establish probable cause for arrest
• Gives officer ammunition for affidavit and reports
• May convince officer to arrest when otherwise uncertain
• No legal penalty for refusing
• Can’t help you in court anyway

Arguments for Taking the PBT

• If you’re completely sober, it might convince officer to let you go
• Refusal might make officer more suspicious
• Officer may arrest you anyway based on other factors
• Shows cooperation during traffic stop

The Reality

If the officer is asking for a PBT, they already suspect DUI. Most officers have already decided to arrest you. The PBT just adds documentation to their case. Unless you’ve had absolutely nothing to drink and are completely confident you’ll blow 0.00, refusing is usually the safer choice.

Should I take the PBT?

I generally think that if you’re sober, it can’t hurt and will speed up the process of getting you back on the road.
If you have had anything to drink at all, I recommend against taking a PBT.

What Happens After You Refuse a PBT

The Officer Can Still

• Arrest you for DUI based on other observations
• Conduct field sobriety tests
• Smell alcohol on your breath
• Note bloodshot eyes, slurred speech, etc.
• Request evidentiary testing at the station

The Officer Cannot

• Force you to take the PBT
• Use your refusal as evidence at trial
• Revoke your license for refusing the PBT
• Charge you with any additional crimes

Your refusal of the PBT gives the officer one less piece of evidence when processing your case and establishing probable cause for your arrest. That’s usually a good thing for your defense.

The Evidentiary Breath Test: A Different Story

After arrest, you’ll be transported to the police station or hospital for an evidentiary breath test on an Intoxilyzer machine. Under Colorado Express Consent law, just by driving on Colorado roads, you’ve already consented to a chemical test of your breath or blood if the officer has probable cause to believe you ae under the influence of alcohol, drugs, or both.

How It’s Different from a PBT

• Much larger, calibrated machine
• Results are admissible in court
• Subject to strict testing protocols
• Requires 20-minute observation period
• Provides detailed printout with multiple readings
• Operated by trained, certified officers

Approved Devices in Colorado

• Intoxilyzer 9000 (most common)
• Other devices approved by Colorado Department of Public Health

Why These Results Are Admissible

• Machines meet scientific reliability standards
• Regular calibration and maintenance are required
• Standardized testing procedures
• Quality control protocols in place
• Officers must be certified to operate the machine

Key Differences: PBT vs. Evidentiary Test

	PBT	Evidentiary Test
Timing	Before arrest, during investigation	After arrest, at a police station or hospital
Device	Small, handheld, portable	Large, stationary, calibrated machine
Admissibility	Not admissible at trial	Fully admissible in court
Voluntariness	Completely voluntary, no penalty for refusal	Subject to express consent, major penalties for refusal
Accuracy	Less accurate, wider margin of error	More accurate, meets scientific standards
Legal Consequences	None for refusing	1-year license revocation for refusing (however you can apply for early reinstatement)
Purpose	Investigative tool to establish probable cause	Proof of BAC for criminal prosecution

Understanding the Observation Period

One critical difference is the observation period required before evidentiary testing.

Before Evidentiary Test

• Officer must observe you for 20 minutes
• Ensures you don’t eat, drink, smoke, or vomit, burp
• Removable dental implants, piercings, and retainers should be removed
• Remove gum, mints, or anything else from the mouth.
• Prevents mouth alcohol contamination
• Required by Colorado law and testing protocols

Before PBT

• No observation period required
• Can be administered immediately
• More susceptible to false readings from mouth alcohol
• Another reason PBT results are unreliable

Failure to properly observe you before an evidentiary test can invalidate the results. PBTs have no such safeguards.

How PBT Results Can Still Hurt You

Even though PBT results aren’t admissible at trial, they can still affect your case:

Probable Cause for Arrest

• Officer can testify they conducted a PBT
• Can say the result indicated presence of alcohol
• Cannot state the specific BAC number
• Helps establish reasonable suspicion for arrest

Officer’s Affidavit

• PBT results appear in police reports
• Prosecutors see the results
• Influences charging decisions
• May affect plea negotiations

Your Knowledge

• If PBT shows high BAC, you know what evidentiary test might show
• Can inform your decision about evidentiary test
• The officer typically won’t share the actual number with you

Accuracy Issues with Both Tests

PBT Accuracy Problems

• Environmental factors (temperature, humidity)
• Mouth alcohol contamination
• Radio frequency interference
• Calibration drift
• User error in administration

Evidentiary Test Issues

• GERD and acid reflux create false readings
• Dental work can trap alcohol
• Certain diets (keto) produce acetone
• Medical conditions affect results
• Machine calibration and maintenance errors

Both tests have accuracy issues, but PBTs are significantly less reliable.

Common Scenarios and What to Do

Scenario 1: Officer asks for PBT, you’ve had 2-3 drinks

• Politely refuse the PBT
• Expect to be arrested anyway
• Preserve your right to refuse evidentiary test later

Scenario 2: Officer asks for PBT, you’ve had nothing to drink

• Consider taking it to demonstrate sobriety
• Should blow 0.00 and might avoid arrest
• Still have right to refuse

Scenario 3: You took PBT and it showed high reading

• Expect arrest
• Prepare for evidentiary test decision at station
• Contact attorney before deciding on evidentiary test

Scenario 4: Officer threatens consequences for refusing PBT

• Stand firm in your refusal
• There are no legal consequences for PBT refusal
• Don’t be intimidated by false claims

What Officers Say vs. What the Law Says

Officer: “Colorado law requires you to take this test.”

Reality: Express consent only applies to evidentiary tests after arrest.

Officer: “If you refuse, I’ll take your license.”

Reality: PBT refusal has zero effect on your license. But refusing an evidentiary test of your breath or blood, does. A refusal of the evidentiary test can revoke your license for a year.

Officer: “This will help you if you’re under the limit.”

Reality: If you’re under the limit, officer observations should be enough. PBT rarely helps defendants.

Officer: “I need you to blow into this device.”

Reality: “Need” is not the same as “legally required.” You can refuse.

Your Rights During Breath Testing

Before Arrest (PBT)

• Right to refuse with no consequences
• Right to remain silent
• Right to not perform field sobriety tests
• Not entitled to attorney before testing

After Arrest (Evidentiary Test)

• Right to know consequences of refusal
• Right to choose between breath and blood (if offered)
• Right to contact attorney if reasonably possible
• Right to understand express consent advisement

Strategic Considerations

If You’re Going to Refuse Something: Refuse the PBT (no consequences) but carefully consider the evidentiary test (major consequences).

If You’re Going to Take Something: Skip the PBT (doesn’t help you) and make an informed decision about the evidentiary test based on circumstances.

What Makes Sense

• PBT rarely helps defendants
• PBT refusal has no downside
• Evidentiary test refusal has serious downsides
• Each case requires individual analysis

Getting Legal Advice

If you’ve taken a PBT, refused a PBT, or face decisions about evidentiary testing, you need experienced legal counsel.

An Experienced DUI Attorney Can

• Explain how PBT results affect your case even if inadmissible
• Challenge the admissibility of evidentiary test results
• Identify testing protocol violations
• Contest the reliability of breath testing
• Negotiate better outcomes based on testing weaknesses

Time is Critical

• DMV hearing deadline is 7 days from arrest
• Evidence gathering starts immediately
• Prosecutor reviews reports quickly
• Early attorney involvement makes difference

Your Next Steps

Understanding the difference between PBT and evidentiary breath tests is crucial for protecting your rights during a DUI investigation. The PBT is a voluntary screening tool that can’t be used against you at trial but helps officers build probable cause. The evidentiary breath test at the station is the real test that counts for your criminal case and license.

If you’ve been arrested for DUI in Colorado Springs after taking or refusing either test, contact the Colorado Springs criminal defense lawyers at McDowell Law Firm immediately. We understand the science behind breath testing, the legal limitations on test results, and how to challenge unreliable evidence in court.

Don’t let confusion about breath testing hurt your case. Get experienced help from attorneys who know exactly how these tests work and how to fight them. Contact our Colorado Springs DUI defense team today for a confidential consultation about your case.

The post PBT vs. Breathalyzer: Understanding the Difference Between Colorado’s Two Breath Tests first appeared on McDowell Law Firm.

from McDowell Law Firm https://mcdowellfirm.com/pbt-vs-breathalyzer/
https://mcdowellfirm.com/practice-area/dui-defense/

Does High Altitude Affect BAC in Colorado Springs? What Drivers Need to Know

No significant effects on performance were obtained due to altitude or to the interaction of altitude with alcohol.

Living at 6,035 feet above sea level, Colorado Springs residents and visitors often wonder whether our Mile High altitude affects blood alcohol content (BAC) readings.

As a criminal defense attorney who has handled hundreds of DUI cases in El Paso County, I frequently encounter this question from clients who claim they “felt more intoxicated” at altitude. The answer might surprise you—and understanding the science could be crucial to your DUI defense.

The Science Behind Altitude and Blood Alcohol Content

The persistent myth that high altitude increases your BAC has been thoroughly debunked by scientific research. When consuming the same amount of alcohol the study found that there was no difference in blood alcohol levels between the two groups (Collins, Mertens, & Higgins, 1987).

This landmark study, conducted by researchers at the FAA Civil Aeromedical Institute, specifically tested subjects at simulated altitudes of 12,500 feet—nearly double Colorado Springs’ elevation.

However, the research is against it. Numerous studies have shown that altitude has no effect on your blood alcohol concentration (BAC). Both high altitude and alcohol do impair your mental performance, but the two do not magically increase the amount of alcohol in your bloodstream when combined. This finding is consistent across multiple peer-reviewed studies spanning several decades.

The Collins, Mertens, and Higgins study remains the gold standard for understanding alcohol effects at altitude. Each of 17 men was trained on 7 tasks in the Multiple Task Performance Battery and then performed over a 2-week period in four experimental sessions: ground level with and without alcohol, and simulated altitude (12,500 ft), with and without alcohol.

The results were clear: There was no synergistic interactive effect of alcohol and altitude on either breathalyzer readings or performance scores.

See:

• https://pubmed.ncbi.nlm.nih.gov/3202783/
• https://pubmed.ncbi.nlm.nih.gov/7369966/

Why People Feel “More Drunk” at High Altitude in Colorado Springs

While your actual BAC doesn’t change at Colorado Springs’ altitude, many people genuinely feel more intoxicated. This phenomenon has several scientific explanations:

1. Dehydration Effects

Colorado Springs’ high-altitude environment causes rapid dehydration. The dry air and increased respiration rate at 6,035 feet leads to faster fluid loss. Alcohol is a diuretic, further accelerating dehydration. While dehydration doesn’t increase your BAC, it can intensify alcohol’s effects on your body and mind.

2. Reduced Oxygen Levels

At Colorado Springs’ elevation, the air contains about 20% less oxygen than at sea level. Your brain receives less oxygen, which can cause symptoms similar to mild intoxication: light-headedness, reduced concentration, and impaired judgment. When combined with alcohol’s effects, these symptoms can feel magnified.

3. Visitor Acclimation Issues

Tourists visiting Colorado Springs from lower elevations face additional challenges. Altitude – Drinks consumed at high altitudes can be nearly twice as potent in their effect for the first few days until the person becomes accustomed to the elevation. However, this “potency” refers to subjective feelings, not actual BAC levels.

Implications for DUI Cases in Colorado Springs

Understanding the relationship between altitude and alcohol is crucial for DUI defense in El Paso County courts. Here’s what Colorado Springs drivers need to know:

BAC Readings Remain Valid

Since altitude doesn’t actually affect blood alcohol content, breathalyzer and blood test results remain scientifically valid at Colorado Springs’ elevation.

These results and those from several other studies suggest that prevalent views regarding the nature of the combined effects of alcohol and altitude on blood levels and on performance are misconceptions.

Colorado Springs police officers and El Paso County prosecutors should be well-aware of these scientific findings. Claiming that altitude affected your BAC reading is not a viable defense strategy in local courts.

The Subjective Experience Defense

However, the subjective experience of feeling more intoxicated at altitude can be relevant in certain circumstances. If you’re visiting Colorado Springs from a lower elevation, you might genuinely have impaired judgment due to altitude effects, even with the same BAC you’d have at sea level. This could be relevant in cases involving:

• Field sobriety test performance
• Decision-making regarding whether to drive
• Understanding of your level of impairment

Colorado Springs Police Training

The Colorado Springs Police Department’s DUI enforcement unit understands that visitors might experience altitude-related symptoms that could affect field sobriety tests. However, they’re also trained to distinguish between altitude effects and alcohol impairment.

Defending DUI Cases in El Paso County Courts

In my experience handling DUI cases throughout Colorado Springs and El Paso County, successful defenses focus on actual legal and procedural issues rather than altitude myths.

Even if you feel a little drunker than usual when you’re visiting Colorado Springs, your BAC is determined by the amount of alcohol you consume in a certain time period. If you feel a little more intoxicated at altitude, maybe it’s a good time to slow down your intake.

Some effective DUI defense strategies include:

1. Challenging Test Accuracy

While altitude doesn’t affect BAC, breathalyzer machines can be affected by Colorado’s dry climate and temperature fluctuations.

Regular calibration issues with devices used by the Colorado State Patrol and Colorado Springs Police Department have led to successful challenges in El Paso County Court. If the machine isn’t certified, out of calibration, or the operator is not certified, the test could be excluded by the Court.

2. Questioning Officer Observations

High altitude can cause legitimate medical symptoms (fatigue, headache, nausea) that might be mistaken for intoxication signs. Experienced Colorado Springs DUI attorneys examine whether officers properly distinguished between altitude-related symptoms and alcohol impairment. Maybe you were out of sorts from the altitude, not the booze when you failed field sobriety tests.

3. Medical Conditions at Altitude

Colorado’s elevation can exacerbate certain medical conditions that affect BAC absorption or metabolism. Conditions like GERD, diabetes, or respiratory issues may be more pronounced at 6,035 feet, potentially affecting test results or officer observations. Let your attorney know if you have any medical conditions.

Practical Advice for Colorado Springs Drivers

Know Your Limits Stay the Same

Your alcohol tolerance doesn’t change at altitude, but your perception might. The same number of drinks that gets you to 0.08% BAC at sea level will have the same effect in Colorado Springs. Plan accordingly and don’t assume you can drink more because you’re at altitude.

Stay Hydrated

Colorado Springs’ dry air increases dehydration risk, which can intensify alcohol’s effects. Drink water between alcoholic beverages, especially during outdoor activities like hiking or attending events at Garden of the Gods or Manitou Springs.

Consider Ride-Sharing Services

With abundant Uber and Lyft availability throughout Colorado Springs, from downtown to the Broadmoor area, there’s no excuse for impaired driving. The cost of a ride home is minimal compared to DUI consequences in El Paso County.

Be Extra Cautious as a Visitor

If you’re visiting Colorado Springs from lower elevations, be especially careful with alcohol consumption. While your BAC won’t be higher, you may feel effects more intensely during your first few days at altitude.

Military Personnel Considerations

Colorado Springs hosts multiple military installations including Fort Carson, the Air Force Academy, Schriever Space Force Base, and Peterson Space Force Base. Military personnel face additional consequences for DUI charges, including potential court-martial proceedings and administrative actions.

Military members should be particularly aware that altitude doesn’t provide any defense against DUI charges. The effects of a DUI or DWAI can be disastrous for your military career.

The Bottom Line for Colorado Springs Residents

The scientific evidence is clear: Colorado Springs’ 6,035-foot elevation does not increase your blood alcohol content. While you might feel more intoxicated due to dehydration, reduced oxygen, or acclimation issues, your actual BAC remains the same as it would at sea level. Colorado’s legal limit of 0.08% applies equally whether you’re in Colorado Springs, Denver or Cripple Creek.

Understanding this science is crucial for making responsible decisions about drinking and driving in our mountain community. When facing DUI charges in El Paso County, work with an attorney who understands both the scientific evidence and local court procedures.

If you’ve been charged with DUI in Colorado Springs or anywhere in El Paso County, don’t rely on altitude myths for your defense. Contact an experienced DUI attorney who can identify legitimate defense strategies based on evidence and Colorado law.

The information in this article is for educational purposes only and does not constitute legal advice. Individual cases require analysis by a qualified Colorado attorney.

The post Does High Altitude Affect BAC in Colorado Springs? What Drivers Need to Know first appeared on McDowell Law Firm.

from McDowell Law Firm https://mcdowellfirm.com/does-high-altitude-affect-bac-in-colorado-springs/
https://mcdowellfirm.com/practice-area/dui-defense/

Can I Refuse a Breathalyzer Test in Colorado Springs

You got pulled over in Colorado Springs. The officer suspects DUI and asks you to take a breathalyzer test. Your mind races: Can I refuse? Should I refuse? What happens if I say no?

The answer is yes, you can refuse a breathalyzer test in Colorado. But refusal comes with serious consequences that could be worse than taking the test and failing it.

Here’s what you need to know about refusing chemical tests in Colorado and how it affects your case and your license.

Understanding Colorado’s Express Consent Law

Colorado is an express consent state. By driving on Colorado roads, you have already consented to chemical testing if an officer has probable cause to believe you’re under the influence. This means:

• You agreed to testing when you got your license
• Refusal triggers automatic penalties
• Police can still obtain a warrant for your blood

The express consent law applies to evidentiary chemical tests, not to roadside preliminary breath tests. (PBTs)

Two Types of Breath Tests: Know the Difference

1. Preliminary Breath Test (PBT)

• Administered roadside during the investigation
• Small, handheld device
• Results are not admissible in court for prosecution
• You can refuse with no legal penalty
• Officer may still arrest you based on other observations

2. Evidentiary Breath Test (Intoxilyzer)

• Administered at the police station after arrest
• Large, calibrated machine (usually Intoxilyzer 9000)
• Results are admissible in court
• Refusal triggers express consent penalties
• This is the test that matters for your case and license

Many people confuse these two tests. The roadside PBT has no legal consequences for refusal. The station breath test does.

Should you refuse the PBT (handheld roadside test)? YES. If you’ve had anything to drink, taking the PBT is not a good decision.

Consequences for Refusing a Breathalyzer Test

When you refuse the evidentiary breath or blood test at the station, several things happen immediately:

1. Automatic License Revocation

• First refusal: 1-year license revocation
• Second or subsequent refusal: 2-year revocation
• No exceptions for work or family needs (before early reinstatement)

2. Evidence Against You

• Prosecution can use your refusal as evidence of guilt
• Jury instruction allows inference of consciousness of guilt
• “Why would an innocent person refuse?”

Can Police Force You to Take a Test?

Yes. If you refuse, police can obtain a search warrant for your blood. Here’s how it works:

Warrant Process

• Officer calls a judge
• Officer provides sworn testimony about probable cause
• Judge can issue warrant relatively quickly
• Medical personnel draw blood at hospital or jail

Forced Blood Draws

• Police can physically restrain you for blood draw
• Medical professionals perform the procedure
• Refusal to cooperate can result in additional charges

The warrant process means refusal doesn’t prevent testing.

License Consequences: Refusal vs. Failure

If You Refuse:

• 1-year license revocation (first offense)
• Not eligible for early reinstatement for 2 months
• Must serve minimum 2 months with no driving
• Ignition interlock required for 2 years after reinstatement

If You Take and Fail (.08 or higher):

• 9-month license revocation (first offense)
• Eligible for early reinstatement after 30 days
• Ignition interlock required for 8 months minimum
• Lower reinstatement fees

Note: Refusal results in longer license loss and extended interlock requirements.

Ignition Interlock Differences

After Refusal

• 2 years of ignition interlock required
• Cannot reduce time period
• Expensive monitoring fees for full 2 years

After Failed Test:

• 8 months ignition interlock (standard BAC)
• 2 years for high BAC (.15 or higher)
• Possible early removal with no hot or missed tests

For most people, the extended interlock period after refusal is more burdensome than the initial license suspension. It’s expensive, embarrassing, and a pain to have to continually blow into the IID.

Pros and Cons of Refusing

Potential Advantages of Refusal:

• No exact BAC number for prosecution to use
• Forces state to prove impairment through observations only
• May avoid “high BAC” enhancements if you were significantly over .08, including mandatory jail for over .20, even on a first offense.

Disadvantages of Refusal:

• Automatic 1-year license revocation vs. 9 months for failure
• 2-year interlock requirement vs. 8 months
• Refusal can be used as evidence of guilt
• Police will likely get warrant for blood anyway
• Enhanced criminal penalties if convicted
• No early reinstatement for first 2 months

The Reality: For most people, the disadvantages outweigh the advantages. The licensing penalties alone make refusal costlier than taking and failing the test. This is not a recommendation for either refusing or participating in a chemical test. It is simply informational, and an explanation of pros/cons.

Should You Refuse a Breathalyzer Test: When Refusal Might Make Sense

Refusal is rarely beneficial, but consider these scenarios:

1. Very High BAC Cases

• If you believe your BAC is significantly over .20
• High BAC cases carry enhanced penalties

2. Multiple Prior DUI Convictions

• If you’re facing felony DUI charges
• Prison time may be inevitable regardless
• Avoiding exact BAC might help at sentencing

3. Medical Conditions

• If you have conditions that affect breath testing
• GERD, diabetes, dental work can cause false readings
• Blood test via warrant might be more accurate

Common Misconceptions About Refusal

Myth: “I can’t be convicted without a breath or blood test.” Truth: Colorado convictions are possible based on officer observations, field sobriety tests, and other evidence.

Myth: “Refusal protects me from DUI charges.” Truth: Refusal can make cases harder to defend (on a case-by-case basis). If you refuse a chemical test, refuse roadside tests as well. Don’t give the prosecution more evidence.

Myth: “They can’t make me take a blood test.” Truth: Warrants allow forced blood draws in refusal cases.

Myth: “I can refuse everything with no consequences.” Truth: You can still be charged with a DUI if you refuse chemical tests and roadside tests (FSTs).

What Happens if You Refuse to Take a Breathalyzer Test?

1. Immediate Consequences

• Officer confiscates your license
• You receive a temporary driving permit (7 days) in the form of an Express Consent Notice and Affidavit.
• Must request DMV hearing within 7 days or face automatic revocation (“forfeit” after 7 days, and suspension will go active)

2. DMV Hearing Process

• Separate from criminal case
• Focus on whether you refused a lawful test
• Officer must prove you refused after proper advisement
• Very difficult to win refusal hearings

3. Criminal Case Impact

• Prosecutor will likely seek warrant for blood test
• Refusal becomes evidence against you
• Enhanced penalties if convicted
• More difficult plea negotiations

Your Rights During Chemical Testing

You Have the Right To

• Choose between breath and blood test (if offered)
• Understand the consequences of refusal
• Recant your refusal in many situations

You Cannot

• Delay testing unreasonably
• Demand a specific type of test

Officer Must Advise You

• Of express consent consequences
• That refusal will result in license revocation
• That refusal can be used as evidence against you

Getting Legal Help After Refusing a Breathalyzer Test

If you refused a chemical test in Colorado Springs, you need experienced legal representation immediately. The stakes are high:

• Your license revocation hearing is soon
• Criminal charges are pending
• Evidence rules are complex in refusal cases
  

An experienced DUI attorney can:

• Challenge the validity of your refusal
• Fight the validity of the stop or police contact
• Negotiate reduced charges despite refusal
• Minimize license consequences where possible
• Present alternative explanations for refusal
• Defend your charges in Court

Refused a Breathalyzer Test? Your Next Steps

Refusing a breathalyzer test in Colorado Springs creates serious consequences that often outweigh any benefits. The enhanced license penalties/criminal sanctions, and evidentiary issues make the decision an important part of your case.

If you already refused, don’t panic. Experienced legal counsel can still protect your rights and fight for the best possible outcome. The key is acting quickly to address both your criminal case and license hearing.

Contact our Colorado Springs DUI defense team today to discuss your refusal case. We understand the Colorado laws on breathalyzer test refusal and know how to build the strongest possible defense for your situation. Time is critical in refusal cases, so don’t wait to get the help you need.

The post Can I Refuse a Breathalyzer Test in Colorado Springs first appeared on McDowell Law Firm.

from McDowell Law Firm https://mcdowellfirm.com/can-i-refuse-a-breathalyzer-test-in-colorado-springs/
https://mcdowellfirm.com/practice-area/dui-defense/

Can I Drive After a DUI Arrest in Colorado?

You got arrested for DUI in Colorado. Now you have one urgent question: Can I still drive?

Losing your ability to drive means losing your independence, your job, and your livelihood. The answer depends on what happened during your arrest, what test you took or refused, and whether you act quickly to protect your license.

Here’s what you need to know about driving after a DUI arrest in Colorado.

Colorado’s Express Consent Law

Colorado is an express consent state. By driving on Colorado roads, you already agreed to submit to a chemical test if an officer has probable cause to believe you are under the influence. That test may be a breath test at the station or a blood draw.

When you are arrested for DUI, the officer will confiscate your physical driver’s license. They will issue you a Notice of Express Consent Affidavit and Notice of Revocation. This paper is your temporary license. It allows you to continue driving legally for seven days, unless you request a hearing.

The 7-Day DMV Hearing Deadline

You have only 7 days from your arrest date to request a Division of Motor Vehicles (DMV) hearing. This applies if you took a breath test or refused testing.

• If you do not request the hearing within that timeframe, your license will be automatically revoked
• If you request the hearing on time, the DMV will issue a new temporary license valid until your hearing date

This gives you additional time to drive legally.

For blood test cases, the process differs. Your license is not immediately revoked. You will be notified later by mail if your results show an unlawful blood alcohol concentration (BAC). You then have a short window to request a hearing.

Driving While Your Case is Pending

You can continue to drive legally in Colorado as long as you have your temporary license from the express consent affidavit. You must also properly request your DMV hearing if required. You can drive until your hearing is held.

At the hearing, the DMV will decide whether to revoke your license. This hearing is separate from your criminal case. It focuses only on whether your license should be suspended.

License Revocation Periods

If the DMV finds against you, your driving privileges can be revoked:

• First offense (BAC .08 or more): 9-month revocation
• Refusal: 1-year revocation
• Second or subsequent DUI: longer revocation periods, often up to 2 years

Early Reinstatement and Driving Privileges

Even if your license is revoked, Colorado law allows many drivers to apply for early reinstatement with conditions. To qualify:

• You must not have refused chemical testing
• You must install an ignition interlock device on your vehicle
• You must obtain SR-22 insurance (special high-risk insurance filing)
• You must pay reinstatement fees to the DMV

Ignition Interlock Requirements

• The ignition interlock device is a breathalyzer installed in your car. It requires a clean breath sample before starting.
• First offense DUI (BAC between .08 and .149): You may reinstate early after 30 days with interlock for at least 8 months
• High BAC (0.15 or greater): Designated as a “persistent drunk driver,” requiring 2 years of interlock and mandatory alcohol education/treatment
• Second offense DUI: 2 years of interlock minimum
• Refusals: Not eligible for early reinstatement; must serve full 1-year revocation before applying for interlock reinstatement

Why Acting Quickly Matters

Can you drive after a DUI before court date? Many drivers wait to “see what happens” in their court case before addressing their license. This is a mistake.

The DMV process runs on its own timeline. It does not wait for your court case to resolve. Court and the DMV are independent actions. You could win one and lose the other on the exact same facts. They have different standards of proof.

Court is “beyond a reasonable doubt.” At the DMV hearing, the standard is “preponderance of the evidence.”

Failing to request a DMV hearing within the 7-day deadline means automatic license revocation. This happens no matter what happens in court. By acting quickly, you preserve your driving privileges while your case works through the system.

Common Questions About Driving After a DUI Arrest

1. Can I drive the morning after a DUI arrest?

Yes, if you still have the temporary license (express consent affidavit) and your 7 days have not expired, or if you requested a DMV hearing.

2. If I refused the test, can I drive?

Only until the 7-day window expires, unless you requested the hearing. After that, your license is revoked for one year. You are eligible for early reinstatement after 2 months. You will have conditions to reinstate (SR-22, alcohol treatment, fees), and you must maintain an Interlock device for two years.

3. What does the 1-year revocation mean if I can get my license back after 2 months?

You will be issued a restricted license if you do early reinstatement. You have to carry the Interlock for 2 whole years either way. Whether you do early reinstatement or wait, you still have to carry the Interlock for two years. In practice, it doesn’t mean much. Be thankful that they have the early reinstatement option.

4. If I win my DMV hearing, do I keep my license?

Yes. If the DMV hearing officer rules in your favor, you keep your driving privileges unless you receive penalties in the criminal case that later imposes its own suspension. There are two ways to lose your license: DMV administrative hearing or the criminal case.

Can You Drive After Getting a DUI: Your Next Steps

After a DUI arrest in Colorado, you can still drive legally. This only works for a limited time and only if you act quickly. The key steps are:

• Understand that your Notice of Express Consent Affidavit is your temporary license
  
• Request a DMV hearing within 7 days if you took a breath test (.08 or greater for adults) or refused testing
  
• With a blood test, the 7-day window does not apply, as the blood test will take months to come back. The DMV will only file on you if your result was .08 or greater within 2 hours of the time of driving
  
• Consider your eligibility for early reinstatement with ignition interlock and SR-22 insurance if your license is revoked

Why You Need a DUI Attorney

The rules around DMV hearings, reinstatement, and interlock periods are complicated. They vary depending on your case. An experienced Colorado Springs DUI lawyer can represent you at the DMV hearing, challenge the evidence against you, and guide you through reinstatement so you can get back on the road as soon as possible.

Don’t let confusion about the DMV process cost you your driving privileges. Contact our office today to discuss your case and protect your license. McDowell Law Firm (719) 227-0022

The post Can I Drive After a DUI Arrest in Colorado? first appeared on McDowell Law Firm.

from McDowell Law Firm https://mcdowellfirm.com/can-i-drive-after-a-dui-in-colorado/
https://mcdowellfirm.com/practice-area/dui-defense/