Charged After a Magnus’ Law Crash? How a Defense Attorney Can Help

• Magnus’ Law, or SB26-132, is codified in Colorado’s DUI statute at C.R.S. 42-4-1301.

• It requires Colorado law enforcement to proactively offer a preliminary breath test to the at-fault driver in any crash involving a death or suspected serious bodily injury. 

• Drivers can decline the screening—there is no penalty for refusing. 

• You cannot be charged under Magnus’ Law itself. It is a crash-scene procedural requirement that can lead to downstream DUI, DWAI, vehicular assault, or vehicular homicide charges. 

• Under Magnus’ Law, neither the preliminary breath test result nor a driver’s refusal to take it is admissible in court. A result suggesting intoxication can be used only to justify further, admissible testing or an arrest, which leaves a defense attorney room to challenge how it’s used.

Magnus' Law requires law enforcement officers to proactively offer a preliminary breath test to a driver believed to be at fault in any crash involving a death or suspected serious bodily injury. 

Before this law, offering a preliminary breath test was left to the officer’s discretion. If an officer did not suspect impairment, no test was offered. Now, the offer is standard procedure at every qualifying crash scene, whether or not the officer independently suspects alcohol or drugs.

A scene qualifies under C.R.S. 42-4-1301(6)(i)(I.3) when a collision results in death or suspected serious bodily injury and the following three conditions are met: 

1. The officer has reason to suspect that the driver is at fault;

2. The driver is not significantly injured or in need of immediate medical attention; and

3. Probable cause for arrest has not yet been established.

Crash Scene Exceptions

An officer is not required to offer the test in two situations: 

1. The officer’s initial contact with the driver occurs more than two hours after the collision; or

2. The officer’s contact has ended, the driver has left and is no longer present, and law enforcement only afterward learns the collision involved a death or serious bodily injury that wasn’t initially suspected.

If a device malfunctions, can’t produce a valid result, or is unavailable due to extenuating circumstances, the officer must document why—both on their body-worn camera and in the crash incident report. C.R.S. 42-4-1301(6)(i)(I.6)

No. The statute expressly preserves the driver’s right to refuse preliminary breath screening without penalty, and it does not change existing evidentiary standards. Colorado drivers have always been able to decline a preliminary roadside test. Magnus’ Law requires the officer to offer it to the driver as an option.

The preliminary test is voluntary to comply with the Fourth Amendment, which prohibits unjustified warrantless searches. Forcing a driver to take the preliminary test would likely render the resulting evidence inadmissible unless a recognized exception applies.

A preliminary breath test reading that suggests impairment gives officers grounds to investigate further and can lead to an evidentiary breath or blood test conducted under Colorado’s express-consent law. Unlike the voluntary roadside test, a driver cannot refuse this step without risking license revocation. What the broader investigation uncovers can influence whether a driver faces criminal charges such as DUI, vehicular assault, or vehicular homicide. 

You cannot be charged under Magnus' Law itself—it is a crash-scene procedure, not a criminal offense. But it can set an investigation in motion, and that investigation can lead to serious charges like DUI, DUI per se, DWAI, vehicular assault, or vehicular homicide. If a crash has put you in that position, working with an experienced criminal defense attorney can change the course of your case for the better.

Charges from a Magnus' Law investigation are serious but defensible. We look closely at how the evidence was gathered and used. Some examples include: 

• How the test is being used - A preliminary breath test is only a screening tool. Under Magnus’ Law, neither the result nor your refusal to take it is admissible in court. A result can be used only to justify further testing or an arrest, not as trial evidence of your blood-alcohol level. We challenge prosecutors who try to stretch a preliminary result beyond that limited purpose. 

• Was the testing truly voluntary - The test must be offered as a genuine choice with no penalty for refusal, as the law states. If you suspect police pressured you, misled you about your right to decline, or never properly informed you of your rights to begin with, your attorney can challenge the inclusion of evidence in discovery.

• Is the science reliable - A number of factors can directly effect the reliability of preliminary breath test. Improper device calibration and inadequate maintenance, errors in administering the test, the timing relative to the crash, rising BAC issues, and underlying medical conditions can all undermine a result the prosecution treats as fact. 

• What the record shows - Officers who skip a screening test must document why, both on body-worn camera and in the incident report. We will examine the records to determine whether the stated reason holds up and whether the officer actually met the documentation requirement.

• Constitutional rights at every stage - We protect your rights at every stage—from the roadside stop through evidential testing and final charging decision. Because the law works both ways, the same evidence that raises questions can also help exonerate a driver who was not impaired. 

The stakes in a serious injury or fatal crash are enormous. A vehicular homicide conviction in Colorado can lead to years in prison. 

If you or someone you love is under investigation or facing charges after a fatal or serious-injury crash, our Colorado Criminal Defense Team can evaluate the situation and fight for the strongest possible defense. Call 303-688-0944 to schedule a consultation or book online.