People v. Helm, 81

• Decision Date: 21 September 1981
• Docket Number: No. 81,81
• Citation: 633 P.2d 1071
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Manford Frank HELM, Defendant-Appellee. SA 123.
• Court: Colorado Supreme Court

Page 1071

633 P.2d 1071

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Manford Frank HELM, Defendant-Appellee.

No. 81 SA 123.

Supreme Court of Colorado, En Banc.

Sept. 21, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., J. Stephen Phillips, John Daniel Dailey, Asst. Atty. Gen., Denver, for plaintiff-appellant.

Hugh R. Warder, Glenwood Springs, for defendant-appellee.

DUBOFSKY, Justice.

The People bring an interlocutory appeal under C.A.R. 4.1 from an order of the county court, affirmed by the district court, suppressing the results of a roadside sobriety test and a blood alcohol test in the prosecution of the defendant, Manford Frank Helm, for drunk driving. The lower courts suppressed the test results primarily because the defendant was not forewarned that he could refuse to take the roadside sobriety test. We reverse the lower courts' rulings.

On April 23, 1980, a Glenwood Springs police officer, responding to a report of a hit-and-run accident involving a red Cadillac and a motorcycle, found both vehicles at the Hot Springs Lodge about a quarter mile from the scene of the accident. ¹ While the officer was examining damage to the motorcycle, the defendant, the driver of the Cadillac, approached the officer and denied involvement in the accident. The officer noted that the defendant had an odor of liquor on his breath, unsteady balance, and thick, slurred speech.

The officer apprised the defendant of his grounds for believing that he had been driving under the influence of intoxicating liquor and asked him to take a roadside sobriety test. The defendant responded, "no problem." In the course of the test, the officer observed that the defendant could not walk a straight line, turn without staggering, touch the tip of his nose, or recite the alphabet. The officer then arrested the defendant for driving under the influence of intoxicating liquor, section 42-4-1202(1)(a), C.R.S.1973, and leaving the scene of an accident, section 42-4-1406(1), C.R.S.1973, and took him to the police station.

Before administering a blood alcohol test, the officer gave the defendant the advisement required by the implied consent law, section 42-4-1202(3)(b), C.R.S.1973. The advisement stated that the circumstances which led the officer to believe that the defendant was under the influence of alcohol were:

"1.) The vehicle you were driving was involved in an accident which left the scene.

2.) You have a odor of alcohol on your person.

3.) You were unable to pass my Roadside Sobriety Test."

After receiving the implied consent advisement, the defendant agreed to take a breathalyzer test. The officer testified that the defendant appeared to be "extremely intoxicated" and had difficulty following instructions. The test results showed a blood alcohol weight of 0.14 percent. ²

The defendant moved to suppress the results of the roadside sobriety test, alleging that it violated his Fourth Amendment rights. He also moved to suppress the results of the breathalyzer test, arguing that the exclusion of roadside sobriety test results would leave the officer without sufficient grounds for having invoked the implied consent law. The county court found that the People had failed to meet their burden of showing that the defendant's decision to take the roadside sobriety test was knowing and intelligent, and granted the defendant's motions. The 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. Although the court listed the defendant's ignorance that he could refuse to submit to the test as its major reason for finding his consent involuntary, it also considered the following circumstances: the defendant was in custody; he was not advised of his Miranda ³ 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 note 12."

Id. at 617.

"12. The applicable standards for determining whether a defendant has voluntarily consented to performing the tests have been set out in Schneckloth v. Bustamonte, (citation omitted) and United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). See People v. Traubert, Colo., 608 P.2d 342 (1980). In this case, however, the question of voluntariness was not argued before this court, and, it will be treated as waived."

Id. at 622. Relying on Ramirez, the county court addressed the Fourth Amendment issue, and ruled that a consent to a roadside sobriety test cannot be voluntary unless it is knowing and intelligent and the person from whom the consent is sought has been informed that he may refuse to take the test. ⁴

Implicit in the use of the knowing and intelligent standard as a measure of an effective waiver of constitutional rights is the supposition that the right waived must be known. Johnson v. Zerbst, 304 U.S. 458 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Phillips v. People, supra, we therefore defined a voluntary consent to search as one intelligently and freely given, and held that the "only requirement of intelligent consent is that the person giving the consent know that he may properly refuse to give his permission to a search conducted without a warrant," Phillips v. People, 170 Colo. at 526, 462 P.2d at 597 (emphasis added). ⁵

The county court drew on Phillips v. People for its definition of voluntary consent. However, People v. Ramirez, supra, adopts the voluntariness standards set out in Schneckloth v. Bustamonte, supra; United States v. Watson, supra ; and People v. Traubert, supra. Schneckloth, decided four years after our decision in Phillips v. People, dispelled the notion that a voluntary waiver of Fourth Amendment rights must be preceded by an advisement that consent may be withheld. In Schneckloth, the United States Supreme Court held

"... when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrates that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent."

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