People v. Ramirez

• Decision Date: 31 March 1980
• Docket Number: 79SC105 and 79SC285,79SC223,79SC116,Nos. 79SC180,79SC69,79SC185,C-1801,s. 79SC180
• Citation: 609 P.2d 616,199 Colo. 367
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Arthur Paul RAMIREZ, Respondent. Raymond CORDOVA, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF PUEBLO, and State of Colorado, and The Honorable Richard D. Robb, Judge thereof, Respondents. The PEOPLE of the State of Colorado, Petitioner, v. Andres P. ZEPEDA, Keith W. Jasper, and Mark A. Theodoran, Respondents. Alberta Bell ANDERSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. The PEOPLE of the State of Colorado, Petitioner, v. Merced LUNA, Glenn Gerald Rutten, and Guadalupe Arellano, Respondents. Richard Thomas EDWARDS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 616

609 P.2d 616

199 Colo. 367

The PEOPLE of the State of Colorado, Petitioner, v. Arthur Paul RAMIREZ, Respondent.

Raymond CORDOVA, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF PUEBLO, and State of Colorado, and The Honorable Richard D.

Robb, Judge thereof, Respondents.

The PEOPLE of the State of Colorado, Petitioner, v. Andres P. ZEPEDA, Keith W. Jasper, and Mark A. Theodoran,

Respondents.

Alberta Bell ANDERSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

The PEOPLE of the State of Colorado, Petitioner, v. Merced LUNA, Glenn Gerald Rutten, and Guadalupe Arellano,

Respondents.

Richard Thomas EDWARDS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Nos. 79SC180, 79SC69, C-1801, 79SC116, 79SC185, 79SC223,

79SC105 and 79SC285.

Supreme Court of Colorado, En Banc.

March 31, 1980.

Rehearing Denied April 14, 1980.

Robert R. Gallagher, Jr., Dist. Atty., Steven R. Polidori, Deputy Dist. Atty., for petitioner in No. 79SC180.

Tague, Goss, Schilken & Beem, P. C., P. Arthur Tague, Denver, for respondent in No. 79SC180.

John R. Naylor, Henry J. Geisel, Pueblo, for petitioner in No. 79SC69.

J. E. Losavio, Jr., Dist. Atty., Scott B. Epstein, Deputy Dist. Atty., for respondents in No. 79SC69.

Paul Q. Beacom, Dist. Atty., Marc P. Mishkin, Deputy Dist. Atty., for petitioner in Nos. C-1801, 79SC116 and 79SC185.

Manuel J. Solano, Westminster, for respondent Andres P. Zepeda.

Johnston & Margolis, P. C., H. Kenneth Johnston II, Broomfield, for respondent Keith W. Jasper.

Lloyd W. Macy, Chris Melonakis, Northglenn, for respondent Mark A. Theodoran.

Dale P. Tursi, Pueblo, for petitioner in No. 79SC223.

Alexander M. Hunter, Dist. Atty., Dennis B. Wanebo, Deputy Dist. Atty., for respondent in No. 79SC223.

Robert N. Miller, Dist. Atty., Elizabeth B. Johnson, Deputy Dist. Atty., Greeley, for petitioner in No. 79SC105.

Kim Houtchens, Greeley, for respondent Merced Luna.

Paula Miller, Denver, for respondents Glenn Gerald Rutten and Guadalupe Arellano.

Ralph L. Cavalli, Lakewood, for petitioner in No. 79SC285.

Nolan L. Brown, Dist. Atty., Linda Palmieri Rigsby, Deputy Dist. Atty., for respondent in No. 79SC285.

ERICKSON, Justice.

We granted certiorari in these cases to consider the constitutional issues that have been raised by the imposition of roadside sobriety tests on persons suspected of driving under the influence of intoxicating liquors or drugs. The central issue presented by each of these cases, which we have consolidated for the purpose of this opinion, is whether a person must be given the warnings directed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to a request for submission to a roadside sobriety test. We now reverse the suppression orders issued in People v. Ramirez, People v. Luna, and People v. Zepeda, ¹ and affirm the district court's denial of suppression in Cordova v. District Court, Anderson v. People, and Edwards v. People. ² Because the factual background which created the constitutional issues which are now before us in each of these consolidated cases is similar, we will specifically address only the fact situation presented in People v. Ramirez.

I.

In the early morning hours of September 20, 1978, a police officer for the City of Aurora observed a car driven by the defendant, Arthur Paul Ramirez, proceeding erratically in a northbound direction on Havana Street. The officer first saw the vehicle strike the curb and then saw it veer across the double yellow line into the southbound lane. Almost immediately thereafter, the vehicle proceeded back across the northbound lanes and struck the curb several more times. At that point, the officer stopped the vehicle and attempted to ascertain the driver's identity. ³

The police officer first asked Ramirez to produce his license and registration card. According to the officer's testimony, Ramirez had difficulty in finding his driver's license. After smelling a strong odor of an alcoholic beverage on Ramirez's breath, the officer asked Ramirez to get out of the automobile. The officer testified that Ramirez had difficulty in walking. Ramirez was then asked if he would take a roadside sobriety test. He consented without reluctance. ⁴

Ramirez was first asked to walk heel to toe in a straight line. According to the officer, when Ramirez attempted to walk a straight line, he could only use half-steps and he staggered badly. Thereafter, the officer asked Ramirez to stand on one leg. Again he failed. He could not maintain his balance on one leg. Ramirez was also instructed to place his heels and toes together, to tilt his head back with his eyes closed, and to then touch the tip of his nose with his index finger using his left hand and then his right. He was unable to accomplish the feat and swayed badly. Ramirez was finally asked to stand with his heels and toes together, with his arms relaxed at his side, with his head tilted back and his eyes closed. He could not perform the test and, again, swayed badly. The officer subsequently arrested Ramirez and charged him with driving under the influence of intoxicating alcohol. Section 42-4-1202, C.R.S. 1973. He was not advised of his Miranda rights, however, until after he had consented to and performed the roadside sobriety tests.

Prior to trial, Ramirez's counsel moved to suppress the results of the roadside sobriety tests on the grounds that they were taken in violation of the defendant's Miranda rights. The motion was granted by the Arapahoe County Court, and, on the prosecution's appeal to the district court, the suppression order was affirmed. The prosecution now seeks to determine whether Miranda and its progeny require a police officer to give a person a Miranda warning prior to a request for performance of a roadside sobriety test.

II.

The primary issue before us involves the Fifth Amendment privilege against self-incrimination. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court thoroughly reviewed the historical and philosophical bases underlying the constitutional privilege against self-incrimination and concluded:

"(T)he (single) constitutional foundation underlying the privilege (against self incrimination) is the respect a government state or federal must accord to the dignity and integrity of its citizens. To maintain a 'fair state-individual balance,' to require the government 'to shoulder the entire load,' (and) to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. In sum, the privilege is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will.' " (Citations omitted.)

Specifically addressing the admissibility of several inculpatory statements derived from custodial interrogation, ⁵ the Court held that an inculpatory statement is constitutionally infirm under the Fifth Amendment unless it can be shown that the defendant had been informed of his constitutional rights prior to being questioned. The Miranda warning requires that an accused person who is in custody must be advised, prior to the time that a statement is taken, that he has the right to remain silent, that anything he says can be used against him, that he has the right to an attorney, and that an attorney will be provided to him if he cannot afford to hire one.

Presented with a fact situation similar to the one before us, the Supreme Court again reviewed the scope of the Fifth Amendment in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber, the defendant was forced to submit to the extraction of a blood sample, which the police then used to determine the level of alcohol in his blood. Rejecting the defendant's Fifth Amendment challenge to the compelled blood test, the Court held that the privilege only protected the accused from being compelled to testify against himself or to otherwise provide the prosecution with "evidence of a testimonial or communicative nature." The Court acknowledged that historically the Fifth Amendment privilege had not been given the broad interpretation which the Miranda opinion suggested. ⁶ The Court stated:

"It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. . . . On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it."

Thus, since the evidence derived from the blood test was neither the defendant's testimony nor evidence relating to some communicative act, its admission was not barred by the Fifth Amendment.

Following Schmerber, the Supreme Court issued several decisions which further clarified the meaning of the phrase testimonial or communicative nature. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court again held that the defendant's Fifth Amendment rights were not violated. Wade was compelled to utter certain words used by the person who committed a robbery while he was appearing in a lineup wearing a disguise similar to that worn by the robber....