Physical Infirmity, Express Consent, and the Mandatory Duty to Offer a Blood Test in Colorado DUI Cases

Introduction

Colorado’s Express Consent law is often described as a straightforward mechanism: a driver suspected of driving under the influence must submit to chemical testing, and refusal carries significant consequences. In practice, however, the statute operates as a carefully balanced framework of reciprocal rights and duties. When that balance is disrupted, particularly when law enforcement mischaracterizes physical inability as willful refusal—the consequences are not merely administrative. They strike at the heart of due process and the reliability of DUI prosecutions.

One recurring but under-litigated issue arises when a driver elects a breath test but becomes physically incapable of completing it due to vomiting. In such cases, officers sometimes deem the conduct a “refusal” without offering an alternative blood test. Colorado law does not permit that shortcut. Where a breath test becomes impracticable because of illness or physical infirmity, the statute mandates a pivot to blood testing. Failure to do so is not a technical misstep; it is a statutory violation with substantive consequences.

This article focuses on situations in which vomiting renders breath testing impossible. It further analyzes why dismissal—not suppression or administrative remedy alone—is the appropriate judicial response when the State’s noncompliance permanently deprives a defendant of potentially exculpatory evidence.

The legal issues examined in this article are not hypothetical. They arise from multiple cases litigated by Tiftickjian Law Firm at both the trial court and appellate levels in Colorado. In each instance, the question presented was whether physical illness, specifically vomiting during the breath-testing process, could lawfully be treated as a refusal under the Express Consent statute. Courts repeatedly answered that question in the negative, concluding that once breath testing became impracticable due to physical infirmity, the statute imposed a mandatory duty on law enforcement to offer a blood test instead. The analysis that follows reflects not only statutory interpretation and appellate authority, but the practical realities of litigating these issues in real cases with real consequences.

Express Consent as a Statutory Scheme of Mutual Obligation

Colorado’s Express Consent law, codified at C.R.S. § 42-4-1301.1, does not exist solely to facilitate evidence collection. Courts have repeatedly recognized that it creates mutual rights and duties for both law enforcement and the driver. The statute imposes obligations on drivers to submit to testing, but it simultaneously imposes affirmative duties on law enforcement to administer chemical tests in compliance with the driver’s election and statutory constraints.

Once an officer invokes Express Consent and a driver elects either a breath or blood test, that election is not advisory. The Colorado Supreme Court has held that a driver has “the right to undergo the chemical test of his choice,” and the corresponding duty to honor that choice falls squarely on law enforcement. The driver does not bear the burden of navigating alternatives, requesting substitutions, or preserving statutory compliance. The obligation to execute the testing process in accordance with the statute rests with the State.

This allocation of responsibility becomes critical when a test cannot be completed as initially elected.

The Statutory Mandate When Breath Testing Becomes Impracticable

C.R.S. § 42-4-1301.1(2)(a)(II) addresses the precise scenario at issue:

“If the person is unable to take, or to complete, or to cooperate in the completing of a breath test because of injuries, illness, disease, physical infirmity, or physical incapacity … the test shall be of the person’s blood.”

The statutory language is unambiguous. When physical infirmity prevents completion of a breath test, the officer’s discretion ends, and a mandatory duty begins. The use of the word “shall” reflects legislative intent to require—not merely permit—a blood test in these circumstances.

This provision is the only statutory exception that allows law enforcement to deviate from a driver’s elected test. The statute does not authorize officers to recharacterize physical incapacity as refusal, nor does it allow the officer to terminate testing altogether where an alternative remains feasible.

Vomiting fits squarely within the statute’s plain language. It is a manifestation of illness or physical infirmity that objectively interferes with the ability to provide a valid breath sample.

Vomiting and the Practical Impossibility of Breath Testing

Breath testing protocols require a continuous, uninterrupted air sample under controlled conditions, typically preceded by a deprivation or observation period designed to eliminate mouth alcohol. Vomiting fundamentally disrupts that process. It introduces mouth alcohol, compromises sample integrity, and often necessitates restarting observation periods.

From both a medical and procedural standpoint, repeated vomiting renders breath testing impracticable. Courts analyzing cooperation under Express Consent apply an objective standard, focusing on external manifestations of willingness rather than subjective intent. A driver who is actively vomiting is not refusing to cooperate; the driver is physically incapable
of completing the test.

Treating vomiting as a refusal conflates inability with defiance. That conflation is inconsistent with the statute and unsupported by medical or forensic reality.

Judicial Treatment of Vomiting as Physical Infirmity

Colorado courts have addressed this issue directly. In an Adams County case later reviewed on interlocutory appeal, the defendant elected a breath test, began vomiting during the observation period, and was warned that continued vomiting would be deemed a refusal. After additional vomiting, the officer terminated testing and marked the encounter as a refusal without offering a blood test.

The reviewing court rejected that characterization. It found no evidence that the defendant was feigning illness or acting uncooperatively. On the contrary, the record demonstrated full cooperation until physical illness intervened. The court concluded that deeming the conduct a refusal was unsupported by the evidence and wrong as a matter of law.

Critically, the court held that once the officer determined the defendant’s illness prevented completion of the breath test, the statute required the officer to inform the defendant of that fact and proceed with a blood test. Because that did not occur, the defendant was deprived of any chemical test result near the time of driving.

The appellate court affirmed dismissal of the DUI charge, emphasizing that the loss of chemical test evidence—evidence that could have been exculpatory—constituted a due process violation that could not be cured by lesser sanctions.

The Consequences of Noncompliance: Lost Evidence and Due Process

Chemical test results occupy a unique position in DUI prosecutions. They are often the most probative evidence available, and they can establish innocence as readily as guilt. When the State fails to comply with Express Consent procedures, the resulting loss of evidence is not speculative, it is permanent.

Colorado courts have consistently analogized improper denial of chemical testing to the suppression of potentially exculpatory evidence. When law enforcement’s statutory noncompliance forecloses the defendant’s ability to obtain a timely blood test, the defendant is deprived of the opportunity to present a complete defense.

In such circumstances, dismissal is not a windfall. It is the only remedy that meaningfully addresses constitutional harm. Suppression of a “refusal” designation does not restore the lost evidence. Administrative remedies do not cure prejudice in a criminal prosecution. Dismissal recognizes that the State, having invoked the statutory scheme, failed to carry out its corresponding obligations.

A Recent Case Study: Breath Test Election, Vomiting, and Dismissal

In a recent DUI case in Adams County, a defendant was arrested and properly advised under Express Consent. The defendant elected a breath test. During the observation period at the police department, the defendant vomited multiple times. Rather than offering a blood test, the officer deemed the conduct a refusal and terminated the testing process.

The defendant never refused chemical testing. At no point did the defendant express unwillingness to submit to testing. The only impediment was physical illness.

Defense counsel Jay Tiftickjian moved to dismiss the DUI charge based on an Express Consent violation, arguing that the officer’s failure to offer a blood test violated the statute and permanently deprived the defendant of potentially exculpatory evidence. The motion emphasized that there was still time within the statutory window to obtain a valid blood sample.

The court agreed. It found that vomiting constituted physical infirmity under the statute, that the officer was required to offer a blood test, and that the failure to do so warranted dismissal. The matter was subsequently sealed following dismissal.

This outcome was not novel. It was the predictable application of settled statutory and constitutional principles.

Implications for Law Enforcement and Defense Practice

For law enforcement, these cases underscore the importance of training and adherence to statutory mandates. Officers are not permitted to improvise remedies when breath testing becomes difficult. The statute supplies the answer: offer a blood test.

For DUI defense attorneys, the lesson is equally clear. Vomiting during breath testing should prompt scrutiny of whether Express Consent procedures were followed. Body-worn camera footage, booking records, and officer reports often reveal whether physical infirmity was present and whether statutory obligations were met.

These cases also illustrate the value of litigating Express Consent issues early and thoroughly. When chemical test evidence is irretrievably lost due to State action, courts retain the authority—and, in appropriate cases, the obligation—to dismiss.

Conclusion

Colorado’s Express Consent law does not permit law enforcement to treat physical illness as defiance. When a driver elects a breath test but becomes physically incapable of completing it due to vomiting or similar infirmity, the statute mandates a blood test. Failure to offer that alternative is a violation with serious consequences.

Courts that enforce this framework protect not only defendants’ rights but the integrity of DUI prosecutions themselves. Accuracy, fairness, and statutory compliance are not competing values; they are mutually reinforcing. When Express Consent is applied as written, outcomes reflect law rather than expedience.

Note on confidentiality: The case study above is presented in anonymized form. Client identities and sealed matter details are intentionally omitted.