I changed my mind! Recantation of Refusal

After an officer has decided to arrest you for DUI or DWAI, he will explain to you the Colorado Express Consent law. Essentially, when you drive in Colorado, you have consented to a blood or breath test if a law enforcement officer has probable cause to suspect you of DUI or DWAI. Although you can refuse - i.e., no one can forcibly test you against your will - this will bring more severe consequences to your driving privileges. 

Sometimes, a person may initially refuse to take the test but then change his or her mind. The legal term for this is “recantation.” Depending on the timing and nature of the recantation, an officer is required to abide by this change of heart and offer the person the test. If the officer does not honor the recantation and instead issues an Express Consent and Notice of Revocation that notes a “refusal,” the person may challenge this at the DMV hearing by showing a proper recantation. 

Timing of Recantation. The DMV hearing officer, or a court if a revocation is later appealed, will look at the timing of the recantation for two purposes: was the recantation within sufficient time to make the test valid and was the recantation made before or after the officer had completed his investigation? 

The Colorado Courts first addressed a recantation of a refusal in 1977 in Zahtila v. Motor Vehicle Division. The Court, albeit briefly, essentially said that the timing of the recantation will determine whether it cured the refusal: the officer must still be available to administer the test and the delay in consent will not materially affect the test result. Because in Zahtila’s case it was unclear whether the 25-minute delay in consent would affect any result of a test, the Court required there to be a new hearing to hear evidence on that issue. 

In Rogers v. Charnes, the Court noted that because the driver failed to show at the DMV hearing that a 1 hour, 15-minute delay would not affect the materially affect the result of a test, the revocation could stand. 

In Gallion v. Motor Vehicle Division, the Colorado Court of Appeals further held that the recantation must be made to the arresting officer or the officer having probable cause to suspect DUI or DWAI and be made within sufficient time to allow the test to be completed within two hours of driving. In Gallion, the recantation was made to a jail deputy after the arresting officer had completed the booking process and left the jail. 

Nature of Recantation. The hearing officer or court will also look at whether or not the recantation was clear and unequivocal. If the recantation is not made in a way that would have been clear to the officer or if the person wavers on the recantation, the hearing officer or court will likely find that it was not a sufficient recantation.

• Practice Tip! What these cases, taken together, mean for you at a DMV hearing is that it is your burden to show that you clearly recanted the refusal, to the arresting officer, before he completed the booking process. It is also your burden to show that, once recantation was made, there was sufficient time to complete the test within two hours of driving and/or without any other reason to believe the delay would have materially affected the results. 

Does this apply to the criminal case? Maybe. 

In 2024, the Colorado Supreme Court heard People v. Montoya, a case involving a fourth DUI, thus making it a felony. Mr. Montoya had recanted his refusal but was not offered a test upon that recantation. He was found guilty after a trial. On appeal of that conviction, the higher courts were considering whether the jury, upon hearing evidence of refusal by the prosecution to show Mr. Montoy’s “consciousness of guilt” (i.e., was he hiding his BAC), should also hear evidence of the recantation. The idea would be that if someone recanted, he was not actually trying to hide anything. 

The Court first noted that criminal trials are governed by the Colorado Rules of Evidence while the license revocation hearing is an administrative hearing governed by the laws of refusal. The Court held that the trial court should consider the admissibility of a recantation under the applicable Rules of Evidence like Rule 106 (“Remainder of or Related Statements”). 

What this means is, your recantation may be helpful in the criminal prosecution if you are trying to combat the State’s argument that, by refusing, you were hiding something.