Chapter 4 - § 4.4 • THE ARREST

• Jurisdiction: Colorado

§ 4.4 • THE ARREST

§ 4.4.1—Summary

To be valid, a DUI arrest must be based on probable cause that the defendant committed an alcohol-related driving offense or other crime justifying arrest. Evidence obtained pursuant to an invalid arrest must be suppressed. An "arrest" occurs when a reasonable person in the shoes of the defendant would feel that his or her freedom of movement was restricted in a significant way. Applying this test to a typical DUI stop, in which the driver has been pulled over, relieved of his or her license, registration, and insurance proof, and asked to get out of the vehicle and perform roadside sobriety maneuvers, would seem to yield the conclusion that an arrest has occurred. However, the courts have been quite clear in holding that this typical DUI situation does not amount to an "arrest," but rather remains part of the investigatory stage of the police-citizen encounter. The issue of "arrest" is addressed in § 4.4.2.

At some point, however, the defendant is arrested. The Fourth Amendment requires that a warrantless arrest must, among other requirements, be supported by probable cause and exigent circumstances. Virtually all DUI arrests are warrantless because they are made at the scene immediately following the investigation. Probable cause to arrest must therefore be established. The question of exigent circumstances is rarely an issue in DUI cases because the potential loss of evidence — in DUI cases, the diminution of the driver's blood alcohol content — is a well-accepted exigent circumstance. The probable cause requirement is addressed in § 4.4.3.

An arrest is a precondition to the invocation of the express consent statute and the mandatory testing that is part of that statutory scheme. An arrest also triggers the requirements of Miranda: that the defendant be warned of his or her constitutional rights before any custodial interrogation takes place.

§ 4.4.2—The Meaning of "Arrest"

It is axiomatic that an illegal arrest cannot occur unless an arrest has actually taken place. An arrest occurs when "a reasonable person in the defendant's shoes would consider himself deprived of his freedom in a significant way." People v. Milhollin, 751 P.2d 43, 49 (Colo. 1988). "Under the Fourth Amendment, a person may challenge a government action when a police officer, 'by means of physical force or show of authority, terminates or restrains [that person's] freedom of movement through means intentionally applied.'" People v. Hughes, 252 P.3d 1118, 1121 (Colo. 2011) (internal citations omitted).

The test for custody is an objective test. People v. Cleburn, 782 P.2d 784, 786 (Colo. 1989). The officer's subjective state of mind is not a proper test. People v. Johnson, 671 P.2d 958, 961 (Colo. 1983), held that an officer's subjective intent to arrest, or not arrest, a suspect is irrelevant unless the officer communicates that intent to the defendant. Once the officer communicates his or her intent, this communication is one of the objective factors a court should consider in determining whether the defendant is in custody. See also Stansbury v. California, 511 U.S. 318 (1994).

Generally, contact with a driver at the site of a traffic stop does not constitute an arrest, despite the fact that most motorists would feel that their freedom of movement has been significantly restricted when they are stopped by the police. People v. Reddersen, 992 P.2d 1176 (Colo. 2000), People v. Archuleta, 719 P.2d 1091 (Colo. 1986), and Berkemer v. McCarty, 468 U.S. 420 (1984), all recognize that this type of roadside questioning does restrict the freedom of the motorist, but Redderson and Berkemer held that the restriction did not amount to an arrest requiring application of the Miranda doctrine, and Archuleta held that a request to perform roadside maneuvers does not constitute an arrest. See also People v. Fury, 872 P.2d 1280, 1284 (Colo. App. 1993) (placing the driver into a police van during a traffic investigation did not amount to custody).

On the other hand, an arrest generally has occurred when an officer completes roadsides, tells the driver that he or she is under arrest, and handcuffs the driver. In People v. Roybal, 655 P.2d 410 (Colo. 1982), the Colorado Supreme Court held that where the defendant remained in custody after...