People v. Helm9/21/1981
-->594 P.2d 1053 (1979).
The county court suppressed the blood alcohol test because the implied consent advisement incorporated the results of the roadside sobriety test as one of the grounds for the officer's belief that the defendant was driving under the influence of alcohol. Only the circumstances listed on the advisement notice may be advanced to justify an invocation of the implied consent law. Lucero v. Charnes,ZA 44 Colo. App. 73, 607 P.2d 405 (1980). Because we find that the results of the roadside sobriety test are admissible, the test results, which the officer listed on the advisement notice, furnished a legitimate basis for the officer's belief that the defendant was driving under the influence of alcohol. Thus, reasonable grounds existed for the application of the implied consent law to the defendant. It was error to exclude the results of the blood alcohol test performed on the defendant.
Accordingly, we reverse the ruling of the district court which affirmed the county court's suppression of the results of the roadside sobriety test and the blood alcohol test.
JUSTICE LEE concurs in the result.
JUSTICE ROVIRA specially concurs.
Disposition
RULINGS REVERSED
JUSTICE ROVIRA concurring in the judgment.
I concur in the judgment of reversal, but on a different basis entirely.
If I believed that the objective voluntariness standard of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), had to be applied in this case, I would support the majority's interpretation of it. As the majority opinion demonstrates, unless a police officer in a routine traffic investigation has used so much coercion that he overbears the will of a reasonably mature, experienced, and intelligent driver, the person's performance of a roadside sobriety test, as a matter of law, will be found to be the product of his own "essentially free and unconstrained choice." Id. at 225, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.
In my view, however, when a driver has been stopped, based upon "articulable and reasonable suspicion," of the officer, see United States v. Cortez, 449 U.S. 411, 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., 199 Colo. 367, 609 P.2d 616 (1980), does not requie the "consent" of the driver if the police officer reasonably suspected that he has been driving under the influence of alcohol. In reality we know a driver's performance of such a test cannot be physically compelled and retain any validity. It cannot be conducted without the subject's active cooperation. People v. Ramirez, supra ; see Lanford v. People, 159 Colo. 36, 409 P.2d 829 (1966). Thus, a driver's willingness to perform the test, if circumstances justify the stop and the officer requests that it be taken, is all the consent that is constitutionally required.
It is a truism that the Fourth Amendment does not prohibit all searches and seizures of potential evidence, only "unreasonable" ones. The cooperation or consent of a criminal suspect is not invariably required, even when investigating police proceed without a warrant. E.g., United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (general search of a person incident to a lawful arrest); Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973) (fingernail scrap
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