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People v. Helm9/21/1981
tration procedures. See Title 42, C.R.S. 1973, Cf. United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972) (federal regulation of liquor). All drivers in Colorado are deemed to have given their consent to a chemical testing of their breath, blood, or urine for the purpose of determining the alcoholic content of their blood, if an arresting officer reasonably believes they may have been driving while intoxicated or impaired. Section 42-4-1202(3)(a)(b), C.R.S. 1973. Their refusal to comply with such chemical testing does not automatically insulate them from negative consequences. See section 42-4-1202(3)(e), C.R.S. 1973 (1980 Supp.). The right to refuse is statutory and does not apply in every case. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970). There is certainly no constitutional basis under the Fourth Amendment to require the driver's consent to chemical testing. Id.
An individual's right to drive on the public roads of Colorado is far from absolute, and consequently a person's expectation of privacy in the exercise of this right must take reasonable account of the need for public regulation and traffic safety. Chemical testing desitgnged to determine the alcoholic content of blood is equally, if not more, intrusive in practice than a roadside sobriety test. This search -- the display of physical characteristics -- and this seizure -- the observation and recording of the results of the test -- involve none of the probing into an individual's private life and thoughts that marks an interrogation or a search for concealed evidence of criminal activity. See United States v. Dionisio, supra ; Davis v. Mississippi, supra. In light of such cases as Schmerber v. California, supra, and Terry v. Ohio, supra, 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. The decision to cooperate, as distinguished from consent, remains entirely in the driver's own power. Unlike Schmerber or Terry, the officer cannot enforce compliance with his search.
An officer's authority to request roadside sobriety testing should be judged in relation to the constitutional limitations that restrict the scope of all temporary investigative detentions. The well-known standards established in Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971) provide sufficient protection to all drivers against arbitrary official interference with their privacy: (1) the stop of an automobile cannot be justified unless the officer has at least a reasonable, articulable suspicion that the driver or one of the car's occupants has been or will be involved in criminal activity, that someone in the vehicle has need of the officer's assistance, or that enforcement of a valid regulation is called for; (2) the purpose of the stop must be the investigation of criminal activity or the exercise of some valid administrative function; (3) the character of the detention, in terms of duration and scope of intrusion, must relate to the purpose for its initiation.
In a stop for the investigation of "drunk driving," where the appearance, speech, and behavior of the driver provide the officer a reasonable basis to suspect that the driver has been driving while intoxicated, see People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976), it is constitutionally permissible for the officer to request the driver to take a roadside sobriety test without first obtaining his consent. Th
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