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People v. Helm9/21/1981
or finding his consent involuntary, it also considered the following circumstances: the defendant was in custody; he was not advised of his Miranda rights before taking the roadside sobriety test; he had only an eighth grade education; and he was extremely intoxicated and had trouble understanding simple directions.
Having suppressed the results of the roadside sobriety test, the county court also deleted the results from the grounds enumerated in the implied consent advisement. The court deemed the notice insufficient because it alleged only that the defendant left the scene of an accident and had an odor of alcohol on his breath. Therefore, the court also excluded the blood alcohol test results, concluding that the officer lacked probable cause to require the breathalyzer test.
The prosecution appealed the county court's suppression order to the district court. That court upheld the county court order, reasoning, first, that People v. Ramirez, supra, required the county court to decide whether the defendant's consent to the roadside sobriety test met Fourth Amendment voluntariness standards, and, second, that the record supported the county court's finding that the defendant did not voluntarily submit to the test. The district court also affirmed the suppression of the blood alcohol test results. Because the county court ruling rested on the erroneous supposition that a consent to search cannot be voluntary unless the person from whom the consent is sought knows that he may refuse permission for a warrantless search, we reverse the district court's order affirming the county court's suppression of the roadside sobriety and blood alcohol test results.
Roadside sobriety tests raise issues involving the Fifth Amendment privilege against self-incrimination, People v. Ramirez, supra, and the Fourth Amendment right to be free from unreasonable searches and seizures. Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); People v. Ramirez, supra ; Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). Ordinarily the Fourth Amendment bars searches conducted without a warrant issued upon probable cause. However, an exception to this rule has long been recognized for searches conducted with the consent of the person exercising effective control over the place searched or the article seized. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); People v. Savage, Colo., 630 P.2d 1070 (1981); Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969); Capps v. People, 162 Colo. 323, 426 P.2d 189 (1967).
In concluding that the defendant's consent was involuntary and therefore ineffective, both lower courts cited our decision in People v. Ramirez, supra. Ramirez was one of several consolidated cases in which we held that because the Fifth Amendment privilege against self-incrimination is not implicated by a roadside sobriety test a person need not be given Miranda warnings before being asked to submit to a roadside sobriety test. However, two footnotes in Ramirez applied Fourth Amendment consent standards to roadside sobriety tests:
"1. We are remanding [some of the companion cases]... to the district court for a hearing to determine whether the defendants' consent to take the roadside sobriety test was voluntary under the Fourth Amendment standards set out infra at
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