Colorado Court of Appeals Long v. Department of Revenue 11CA1646

Decision here.

   A police officer saw Long speeding and weaving in & out of his lane.  He conducted a traffic stop, noticed that Long smelled like alcohol, administered FSTs (which Long did not complete satisfactorily), and arrested him for DUI.  After the officer explained Express Consent, Long chose to take a breath test.

   At the station, the breathalyzer was not functioning properly.  The officer conducting the test turned it off and on again, and it started to work.  At this point, Long refused to take the test because he believed that the breathalyzer was still malfunctioning.  He was served with a revocation of his license.  A DOR hearing officer upheld the revocation, and Long appealed.

   The Court of Appeals observed that the Express Consent statute gives a DUI suspect the opportunity to choose between a blood or breath test, but that if there are extraordinary circumstances (such as a malfunctioning breathalyzer) that would prevent the completion of the test, then the arresting officer can just inform the suspect of the circumstances and then require them to take the other type of test.  It's the cop's job to determine whether there are extraordinary circumstances, not the suspect's.

   In this case, the police had determined that the breathalyzer was properly functioning.  Whether they were right or not isn't material to the case, because Long refused to take the test (but if he had taken the test as required, then he could have challenged the validity in a later hearing).  Long also argued that weaving and driving in excess of the posted speed limit did not justify the traffic stop (the court ruled that these things do justify a stop, and also ruled that an officer's visual estimate of speed was enough to establish reasonable suspicion).