roadside sobriety test in Colorado

1984In People v. Ramirez, 199 Colo. 367 , 609 P.2d 616 (1980), we held that evidence obtained from a roadside sobriety test is not testimonial in nature and does not implicate the privilege against self-incrimination.

1984In People v. Ramirez, 199 Colo. 367 , 609 P.2d 616 (1980), we held that evidence obtained from a roadside sobriety test is not testimonial in nature and does not implicate the privilege against self-incrimination.

1988We have previously held that the privilege against self-incrimination does not extend to the results obtained from a roadside sobriety test, with the consequence that the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), need not precede a request for performance of such a test.

1988We have previously held that the privilege against self-incrimination does not extend to the results obtained from a roadside sobriety test, with the consequence that the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), need not precede a request for performance of such a test.

2025Id. ¶7 A roadside sobriety test is a full search in the constitutional sense and, as relevant here, can be administered when the driver voluntarily consents to perform the test.

1995The defendant cites People v. Roybal, 655 P.2d 410 (Colo.1982), for the proposition that the odor of an alcoholic beverage and the fact of an accident alone cannot give rise to probable cause to arrest.

1989Id. at 374 .

1989Id. at 374 .

1988As the United States Supreme Court recognized with respect to an analogous request for a blood-alcohol test in South Dakota v. Neville, “the State wants [the suspect] to choose to take the test, for the inference of intoxication arising from a blood-alcohol test is far stronger than that arising from a refusal to take the test.” Id. at 564 , 103 S.Ct. at 922 .

1988As the United States Supreme Court recognized with respect to an analogous request for a blood-alcohol test in South Dakota v. Neville, “the State wants [the suspect] to choose to take the test, for the inference of intoxication arising from a blood-alcohol test is far stronger than that arising from a refusal to take the test.” Id. at 564 , 103 S.Ct. at 922 .

1986Berkemer, 468 U.S. at ___ , 104 S.Ct. at 3152 . [2] In Ramirez , we held a person need not be given the warnings directed by Miranda prior to a request for submission to a roadside sobriety test because the evidence derived therefrom is not of a testimonial or communicative nature.

1986Berkemer, 468 U.S. at ___ , 104 S.Ct. at 3152 . [2] In Ramirez , we held a person need not be given the warnings directed by Miranda prior to a request for submission to a roadside sobriety test because the evidence derived therefrom is not of a testimonial or communicative nature.

1984In light of such cases as Schmerber v. California, [ 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966)], and Terry v. Ohio, [ 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)], where the criminal suspect has no constitutional basis to invalidate or terminate the officer’s Fourth Amendment intrusions, it seems reasonable to allow an officer to request a driver to perform a roadside sobriety test.” Helm, 633 P.2d at 1080 .

1984In light of such cases as Schmerber v. California, [ 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966)], and Terry v. Ohio, [ 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)], where the criminal suspect has no constitutional basis to invalidate or terminate the officer’s Fourth Amendment intrusions, it seems reasonable to allow an officer to request a driver to perform a roadside sobriety test.” Helm, 633 P.2d at 1080 .

1981In my view, however, when a driver has been stopped, based upon “articulable and reasonable suspicion,” of the officer, see United States v. Cortez, -U.S. -, 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979), a roadside sobriety test incident to the stop, which merely elicits an exhibition of physical characteristics, People v. Ramirez, Colo., 609 P.2d 616 (1980), does not require the “consent” of the driver if the police officer reasonably suspected that he has been driving under the influence of alcohol.

1981In my view, however, when a driver has been stopped, based upon “articulable and reasonable suspicion,” of the officer, see United States v. Cortez, -U.S. -, 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979), a roadside sobriety test incident to the stop, which merely elicits an exhibition of physical characteristics, People v. Ramirez, Colo., 609 P.2d 616 (1980), does not require the “consent” of the driver if the police officer reasonably suspected that he has been driving under the influence of alcohol.

1981The court relied on People v. Ramirez, Colo., 609 P.2d 616 (1980), which suggests that a defendant must voluntarily consent to a roadside sobriety test, and Phillips v. People, 170 Colo. 520 , 462 P.2d 594 (1969), which held that knowledge that one may properly refuse to consent to a warrantless search is a prerequisite to a voluntary consent.

1981The court relied on People v. Ramirez, Colo., 609 P.2d 616 (1980), which suggests that a defendant must voluntarily consent to a roadside sobriety test, and Phillips v. People, 170 Colo. 520 , 462 P.2d 594 (1969), which held that knowledge that one may properly refuse to consent to a warrantless search is a prerequisite to a voluntary consent.

1981Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938).

1981Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938).

1981In my view, however, when a driver has been stopped, based upon “articulable and reasonable suspicion,” of the officer, see United States v. Cortez, -U.S. -, 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979), a roadside sobriety test incident to the stop, which merely elicits an exhibition of physical characteristics, People v. Ramirez, Colo., 609 P.2d 616 (1980), does not require the “consent” of the driver if the police officer reasonably suspected that he has been driving under the influence of alcohol.

1981In my view, however, when a driver has been stopped, based upon “articulable and reasonable suspicion,” of the officer, see United States v. Cortez, -U.S. -, 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979), a roadside sobriety test incident to the stop, which merely elicits an exhibition of physical characteristics, People v. Ramirez, Colo., 609 P.2d 616 (1980), does not require the “consent” of the driver if the police officer reasonably suspected that he has been driving under the influence of alcohol.

1981Reviewing the record as a whole, it clearly and convincingly demonstrates that, under the totality of the circumstances, the roadside sobriety test was conducted in accordance with the defendant’s “essentially free and unconstrained choice;” there was no evidence that his “will ha[d] been overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamonte, supra 412 U.S. at 225 , 93 S.Ct. at 2047 ; United States v. Watson, supra 423 U.S. at 424 , 96 S.Ct. at 828 ; People v. Phillips, 197 Colo. 546 , 594 P.2d 1053 (1979). 8 The county court suppressed the blood alc

1981Reviewing the record as a whole, it clearly and convincingly demonstrates that, under the totality of the circumstances, the roadside sobriety test was conducted in accordance with the defendant’s “essentially free and unconstrained choice;” there was no evidence that his “will ha[d] been overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamonte, supra 412 U.S. at 225 , 93 S.Ct. at 2047 ; United States v. Watson, supra 423 U.S. at 424 , 96 S.Ct. at 828 ; People v. Phillips, 197 Colo. 546 , 594 P.2d 1053 (1979). 8 The county court suppressed the blood alc

1981Reviewing the record as a whole, it clearly and convincingly demonstrates that, under the totality of the circumstances, the roadside sobriety test was conducted in accordance with the defendant’s “essentially free and unconstrained choice;” there was no evidence that his “will ha[d] been overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamonte, supra 412 U.S. at 225 , 93 S.Ct. at 2047 ; United States v. Watson, supra 423 U.S. at 424 , 96 S.Ct. at 828 ; People v. Phillips, 197 Colo. 546 , 594 P.2d 1053 (1979). 8 The county court suppressed the blood alc

1981Reviewing the record as a whole, it clearly and convincingly demonstrates that, under the totality of the circumstances, the roadside sobriety test was conducted in accordance with the defendant’s “essentially free and unconstrained choice;” there was no evidence that his “will ha[d] been overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamonte, supra 412 U.S. at 225 , 93 S.Ct. at 2047 ; United States v. Watson, supra 423 U.S. at 424 , 96 S.Ct. at 828 ; People v. Phillips, 197 Colo. 546 , 594 P.2d 1053 (1979). 8 The county court suppressed the blood alc

1981Reviewing the record as a whole, it clearly and convincingly demonstrates that, under the totality of the circumstances, the roadside sobriety test was conducted in accordance with the defendant’s “essentially free and unconstrained choice;” there was no evidence that his “will ha[d] been overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamonte, supra 412 U.S. at 225 , 93 S.Ct. at 2047 ; United States v. Watson, supra 423 U.S. at 424 , 96 S.Ct. at 828 ; People v. Phillips, 197 Colo. 546 , 594 P.2d 1053 (1979). 8 The county court suppressed the blood alc

1981Reviewing the record as a whole, it clearly and convincingly demonstrates that, under the totality of the circumstances, the roadside sobriety test was conducted in accordance with the defendant’s “essentially free and unconstrained choice;” there was no evidence that his “will ha[d] been overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamonte, supra 412 U.S. at 225 , 93 S.Ct. at 2047 ; United States v. Watson, supra 423 U.S. at 424 , 96 S.Ct. at 828 ; People v. Phillips, 197 Colo. 546 , 594 P.2d 1053 (1979). 8 The county court suppressed the blood alc

1980Cal. 1969); Connecticut, State v. Corrigan, 228 A.2d 568 (Cir.Ct.

1980At the outset, we note that the courts in a large number of states have considered the issue before us and nearly all have held that the roadside sobriety test does not compel a confession from its subject. 8 In Commonwealth v. Kloch, 230 Pa. Super. 563 , 327 A.2d 375 (1974), for example, a Pennsylvania court aptly declared: “Requiring a driver to walk in an effort to determine whether he is intoxicated does not violate his privilege against self-incrimination, for the evidence secured is not of a ‘testimonial nature’ ....

1980At the outset, we note that the courts in a large number of states have considered the issue before us and nearly all have held that the roadside sobriety test does not compel a confession from its subject. 8 In Commonwealth v. Kloch, 230 Pa. Super. 563 , 327 A.2d 375 (1974), for example, a Pennsylvania court aptly declared: “Requiring a driver to walk in an effort to determine whether he is intoxicated does not violate his privilege against self-incrimination, for the evidence secured is not of a ‘testimonial nature’ ....

1980While we have not previously addressed the particular issues raised in this case, we recognized in People v. District Court, 187 Colo. 333 , 531 P.2d 626 (1975), that the privilege against self-incrimination does not extend to demonstrative evidence obtained as a result of the performance of acts by the defendant.

1980While we have not previously addressed the particular issues raised in this case, we recognized in People v. District Court, 187 Colo. 333 , 531 P.2d 626 (1975), that the privilege against self-incrimination does not extend to demonstrative evidence obtained as a result of the performance of acts by the defendant.

1980State v. Arsenault, supra. 11 Cf. Lewis v. United States, 382 F.2d 817 (D.C.

1980We upheld those provisions in People v. Traubert. 199 Colo. 322 , 608 P.2d 342 (1980).

1980We upheld those provisions in People v. Traubert. 199 Colo. 322 , 608 P.2d 342 (1980).

1980Therefore the Court’s admonition is not relevant here. 8 Our research indicates that the following courts have held that a roadside sobriety test does not fall under the provisions of the Fifth Amendment: California, Whalen v. Municipal Court of the City of Alhambra, 79 Cal. Rptr. 523 (Ct.App.