Chapter 4 - § 4.3 • THE ROADSIDE SOBRIETY TESTS

• Jurisdiction: Colorado

§ 4.3 • THE ROADSIDE SOBRIETY TESTS

§ 4.3.1—Summary

"Roadside maneuvers" or "roadside sobriety tests" are a series of physical maneuvers an investigating officer requests a driver to perform at or near the site of the initial stop. These typically include a request that the defendant say the alphabet or perform the Rhomberg test, a walk-and-turn test, a one-leg stand test, a finger-to-nose test, and/or a horizontal gaze nystagmus test.

Since maneuvers such as roadside maneuvers are those that an ordinary person seeks to preserve as private, there is a constitutionally protected privacy interest in the coordinative characteristics sought by the testing procedure. People v. Carlson, 677 P.2d 310 (Colo. 1984). Accordingly, the intrusion involved raises Fourth Amendment issues. Roadsides are deemed to constitute a full search in the constitutional sense and must therefore be supported by probable cause or voluntary consent. Id.

In general, the performance of roadsides does not involve the Fifth Amendment privilege against self-incrimination. Pennsylvania v. Muniz, 496 U.S. 582 (1990). The Fifth Amendment privilege against self-incrimination applies to testimonial evidence. Evidence obtained from roadsides is not testimonial in nature and does not implicate the privilege against self-incrimination. People v. Lowe, 687 P.2d 454 (Colo. 1984). The fact that the roadsides can only be conducted with the defendant's consent and cooperation does not make them testimonial in nature, as the defendant is not required to divulge any knowledge he or she may have. People v. Ramirez, 609 P.2d 616 (Colo. 1980). Accordingly, Miranda warnings are not required before administration of roadside maneuvers. Lowe, 687 P.2d at 455.

However, a test does not escape Fifth Amendment scrutiny simply by being labeled a roadside sobriety test. In Muniz, the tests included a demand that the motorist state the date of his sixth birthday. The Court held that this question sought more than a simple determination of whether the defendant's speech was slurred; it sought substantive information and the defendant's mental state. As such, it was testimonial in nature, and implicated the Fifth Amendment. Since the defendant was in custody, but not warned in compliance with Miranda, this statement was suppressed. Muniz, 496 U.S. 582.

§ 4.3.2—The Requirement of Probable Cause or Voluntariness

As noted, roadside sobriety tests must be supported by either probable cause or by consent of the motorist. The...