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People v. Helm9/21/1981
eed for [consent] searches and the equally important requirement of assuring the absence of coercion." Id. at 227. The Court pointed out that "... a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity." In People v. Hayhurst, supra, we reasoned that it was not necessary to impose on police officers an affirmative duty to warn persons of their right to refuse consent because other evidence is often adequate to demonstrate that the search was agreed to voluntarily.
This is such a case. Here, there is no evidence that the police officer made promises or used tactics which overbore the will of the defendant. There is no evidence that the officer claimed a right to conduct the sobriety test, or attempted to deceive the defendant. See People v. Hayhurst, supra. Instead the defendant promptly acceded to the officer's request for a test. Knowledge of the right to refuse consent is not a prerequisite to a valid consent but one of many factors to be considered by the trial court.
In addition to the failure of the officer to inform the defendant that he need not consent to a roadside sobriety test, the trial judge considered, as relevant to the determination of voluntariness, such factors as the lack of a Miranda warning, the custody of the defendant, his lack of formal education and his "extreme" intoxication. Miranda warnings are not required before the administration of a roadside sobriety test. People v. Ramirez, supra. Custody alone does not render consent involuntary. United States v. Watson, supra. Intoxication, although a factor to be considered, is not determinative of the voluntariness of a consent to search. State v. Berry, 526 S.W.2d 92 (Mo.App. 1975). The record indicates only that the defendant was forty-seven years old, intoxicated, and without much formal education; it contains no evidence that he failed to understand the request to take a roadside sobriety test.
Under the totality of the circumstances test, it is appropriate to take into account both the characteristics of the consenting person (such as youth, education and intelligence) and the circumstances of the search (such as duration and location). United States v. Price, 599 F.2d 494 (2d Cir. 1979); Mobley v. State, 335 So.2d 880 (Fla. App. 1976). Because the defendant does not allege that the officer subjected him to any psychological coercion, his lack of formal education does not negate his consent. United States v. Mayes, 552 F.2d 729 (6th Cir. 1977).
Similarly, the defendant does not contend that he was so intoxicated that his will was overborne by coercive police tactics. United States v. Hall, 565 F.2d 917 (5th Cir. 1978). He readily agreed when asked to perform the sobriety test. Intoxication does not subvert consent if the individual is capable of giving an explanation of his actions. United States v. Leland, 376 F. Supp. 1193 (D. Del. 1974); see also Ballay v. People, 160 Colo. 309, 419 P.2d 446 (1966). Here, the defendant volunteered information to the officer about his activities.
Reviewing 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 been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, supra at 225; United States v. Watson, supra at 424; People v. Phillips, 197 Colo. 546,
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