People v. Roybal
655 P.2d 410
Colo.
1982
Check Treatment

*1 Colorado, PEOPLE State Plaintiff-Appellant, ROYBAL, Defendant-Appellee.

Andrew

No. 82SA365. Colorado, Court of

Supreme

En Banc.

Dec.

4H charges were dismissed on the motion of prosecution the the day set for trial. The suppress defendant moved to all his Dale Tooley, Atty., Moore, Dist. 0. Otto statements to the relating incident on the Asst. Dist. Atty., Wunnieke, Brooke Chief others, ground, among they were the Appellate Deputy Atty., Denver, Dist. for products illegal of an arrest. This motion plaintiff-appellant. immediately heard in advance of the Vela, David F. State Public De- Colorado scheduled trial. hearing After the evi- fender, Public De- Vigil, Deputy Jess State dence, the suppressed trial court the state- fender, Denver, defendant-appellee. ments products as the of an arrest violated defendant’s LOHR, Justice. rights supported because it was not brings The prosecution interlocutory probable cause to believe the defendant had appeal from an order the Denver District committed a crime. The chal- Court suppressing certain statements made lenges First, two ruling on bases. it by the use defendant from as evidence in contends that the trial court erred in con- his forthcoming charge trial on the of vehic- cluding that no probable there was assault, 18-3-205, ular Second, arrest the defendant. (1978 Repl.Vol. 8). affirm in part We and argue that even if the arrest was unconsti- part. reverse in tutional the defendant’s verbal statement defendant, Roybal, Andrew was the when he to first returned the accident scene driver of an automobile was involved preceded the and should not have in a collision with car at another 18th Ave- suppressed. agree been We with the second nue Logan and in Denver in Street argument but not with the first. We begin early morning May hours of 1980. Offi- by addressing that second contention. cer Eaton of the Department, Denver Police officers, one of investigating was the I. sole hearing witness at the suppression minute Although the order based on gave the following account of the events. suppression hearing reflects that scene, Roybal’s car was at the but he was suppress defendant’s granted motion to absent, when the During officers arrived. in its entirety, apparent it is from the tran investigation course of the the defend- script of judge trial ant returned and advised officers that focused on the written statement alone in he was the driver of vehicles and making ruling. A motion for clarifica had left the police. scene earlier call the tion of likely the order most would have Officer Eaton odor of noticed any appeal suppres eliminated need beverage about the defendant. The offi- sion of the oral statement. car, cers him placed in a where one policeman of his advised him Miranda1 undisputed Officer Eaton’s rights. Thereafter, squad while car that, before unequivocal the officers scene, gave the accident the defendant defendant, spoke approached written statement the collision about them that he was the and volunteered miss- leading up activities it. support driver. no in the There is rec- ord for a conclusion vehicu- assault, or under restraint of kind lar driving influence of statement. The intoxicating liquor drug,2 narcotic when he made the oral sole driving.3 grounded reckless latter two basis on which the trial court its Arizona, 42-4-1203(1), 1. Miranda v. 3.Section Supp.). 16 L.Ed.2d 694 42-4-1202(l)(a) (l)(c), 2. Section C.R.S. Well, I say didn’t didn’t indicate the statements A: he order me he wasn’t intoxicated. illegal arrest. As products were [sic] fairly appeared said he nor- the oral state- undisputed evidence manner, you say mal would defendant’s preceded

ment overly drunk. statement must be suppressing that order *3 reversed. entirely It is not clear whether the the was un

People concede that defendant gave der when he his written state II. by describing custody whether the ment or in People that was concede of accomplished purpose for the deter when he his written statement custody gave the mining accurately argue not that the statement was do they asserting that this was blood are Rather, product not the detention. See, only stop. e.g., Terry investigatory an its for re- argument the bases Ohio, v. 88 20 L.Ed.2d S.Ct. that, contrary to the versal on the assertion People, 174 (1968); 889 Stone v. Colo. ruling, was court’s there (1971). appears 485 495 It from the P.2d custody into for the take the defendant record, however, the defendant re the determining accurately alco- purpose of in after his questioning mained holic content of his blood.4 transported was in handcuffs “downtown” administering a for the blood The evidence at the test. is no indication in the There scanty. was When the officers arrived at police decision of the to record the they the that a driver was scene discovered depend perform the blood alcohol test was their in- began absent. After the officers way to upon responses ent in the vestigation, appeared, volun- in Whenever questioning squad car. driver, missing teered that he was the by offi questioning detention he stated that had left scene call the cursory cer more than brief and there is are it police. Officer Eaton remembered that arrest, by an must be supported prob “pretty was serious accident”5 York, v. Dunaway able New 442 cause. “an odor of alcoholic defendant had 99 L.Ed.2d 824 U.S. questioned about him.” When Schreyer, P.2d (1979); People v. counsel, detail defense the officer said by Tooker, (Colo.1982);6 v. 198 Colo. People coherent,” “seemed Roybal “appeared P.2d We believe the manner, normal fairly walk didn’t correctly the de trial court concluded anything,” or any problems talking was fendant’s detention an questions and seemed to understand investigatory stop, so the standards test during asked the Miranda advisement. validity of a brief investi constitutional following questioning course of that stop applicable here. gatory exchange place: took Sehreyer, generally People supra. v. Q: testimony, your As I understand oth- alcohol, muster, pass To er than an odor of noth- be cause. you supported him indicated to he arrest must about Gomez, E.g., v. People intoxicated. York, Dunaway People’s argument supra, 4. 6.In v. New United We understand the Supreme recognized that whether there believe States Court place of intoxicat- under influence for Fourth Amend- “seizure” taken vehicle, ing liquor dependent purposes when he drove his viola- defini- ment 42-4-1202(l)(a), tion of section C.R.S.1973 state 442 U.S. at tion of “arrest” under law. (1978 Repl.Vol. 8). 60 L.Ed.2d 836. 99 S.Ct. at implicitly People Sehreyer, supra, treated v. we is the of the This extent evidence about equivalent law as to a an arrest Colorado result nature accident, collision. As a section 16-3- Amendment seizure. See Fourth (1978 Repl.Vol. 8). 102, causing bodily injury to a victim. serious P.2d 952 Probable cause to arrest enough to establish probable cause. Under exists when “facts available to a reasonably here, the circumstances including the lack cautious officer at the moment of arrest of any indication that the defendant was at would warrant his belief that an offense collision, fault in causing the and officer has been or is being committed” Eaton’s reflecting that he ob- Navran, to be detained. People served none of the common indicia of intox- (1971); ication in the speech, walk, defendant’s accord, e.g., People v. Schreyer, supra; see understand, ability to agree we with the 16-3-102, Repl.Vol. trial court the People did not carry 8). The burden of proving facts constitut- prove burden to prob- existence of ing probable cause to arrest without a war- Therefore, able cause.8 we affirm the trial rant is on the prosecution. E.g., court’s order suppressing the written state- Eichelberger, (Colo.1980); ment from use as evidence at the defend- *4 Gomez, People v. supra. ant’s trial. The record is barren of evidence We part, affirm in in part, reverse the collision occurred as a result of remand the case for proceedings. further misconduct defendant. All that we learn from the record is that an accident ROVIRA, J., dissents, LEE, J., joins took place, the defendant driving was in the dissent. involved, of the cars and he an had odor of ROVIRA, Justice, dissenting: beverage alcoholic Although about him. respectfully dissent from Part II of the testimony officer’s and his decision to majority opinion holding that there was not administer a blood alcohol sugges test are probable take the defendant into opinion tive of an and that cause was neces- alcohol, under the influence of the single sary. objective fact to which he sup testified in

port such conclusion A is the odor of brief review of the facts and circum- An beverage.7 case, odor of alcoholic surrounding stances in addition to beverage is not inconsistent with ability to those set out in the majority opinion, will be operate a motor in compliance helpful. vehicle with The accident in which the defend- 42-4-1202(2)(a), 3,1980. Colorado law. See section ant was took on place May involved (1978 8) Repl.Vl. Supp.). assault, He was with vehicular The prosecution argued to the trial court driving under the influence of intoxicating driving, the accident and the liquor, driving. odor and reckless He failed to of alcoholic beverage together taken appear required, in court as and an alias (1979) (there 7. We find Eaton’s that the defendant 590 P.2d 516 were reasonable drunk,” “overly together was grounds taken to believe driver was under the influ that officer’s statements that exhibited weaving ence of alcohol where his auto was walk, significant problems no in talk speeding, there an was odor of alcoholic understand, ambiguous and equated to be too to be breath, beverage on his and he did not satisfac opinion with an that the defendant was test); torily perform sobriety roadside and Gil intoxicating liquor. under the influence of Dolan, Colo.App. bert v. 41 586 P.2d 233 (1978) (there grounds were reasonable to be 8. The has cited no in case which an lieve a driver was under the influence of alco more, beverage, odor of alcoholic without erratically, strong hol where he drove had a been held to constitute cause to be breath, beverage his odor of alcoholic on person lieve a is under the influence of intoxi walk, speech, staggered slurred and other cating liquor. Smith, Compare People v. 175 Charnes, intoxication) indicia of with Lucero v. (1971) (probable Colo. 486 P.2d 8 cause Colo.App. (1980) (no P.2d 405 rea found to arrest driver who had an accident grounds sonable to believe defendant was un eighty after in excess of miles an hour involvement der influence of alcohol based on beverage where an odor of alcoholic bloodshot, watery eyes). having in accident and present in the car and on the breath several Helm, generally People v. P.2d 1071 See occupants, of the other but was not detected on (Colo. 1981). Charnes, driver); III, Colo.App. Hall v. was issued to show that the defendant caused for his arrest on Octo- warrant relevant, until April was not ber It the accident is apprehended. 1982, that the drunk-driving merely is not laws began July and on the His trial on traffic punish those drivers who commit his day, the defendant filed motion next their ability impaired violations while subject of which is the this inter- suppress, Vehicle Divi- alcohol. Johnson Motor appeal. locutory sion, P.2d 488 Colo.App. Officer Eaton testified accident We on numerous occasions that have said investigated he and partner his probable cause to exists where enough May was serious to call an officer’s facts and circumstances within He further testi- investigators. the traffic are sufficient to warrant a cau- knowledge approached that the him and fied believing, prudent tious officer’s that he partner and stated light training experience, of one of the cars involved in the driver has been committed and offense and he to call the gone had Vigil, it. committed arrested Eaton estab- returned. Officer (1979); People v. without the de- lished contradiction Gonzales, 186 Colo. had odor of alcoholic fendant may We have also held that staggering, about him but was not did personal observations based walking, have trouble and seemed to under- Saars, People v. arresting officer. *5 he had stand the Miranda advisement that (1978). often been It has given. been “nat- experienced noted officers that urally develop perceive and During the course of his examination enor- suspicious Eaton and which is of cross-examination, was frank unusual Officer protect- passage that of the of mous in the difficult task of to admit because value law-abiding date of the acci- years security safety over two from the of detail, Gale, every dent he could remember 795- People not citizens.” v. 9 Cal.3d 852, 858, more occasion stated that and on than one P.2d Cal.Rptr. *6 enough presumption often, raise the the drivers’ statements are taken in driving he was under the influence of patrol Although car. the trial court intoxicating ability or while his decision police based its officer’s drive impaired. knowledge That could that the not free only leave, be given present obtained after he was that is a is factor that opportunity investigations. to take a blood or test most 42- breath Section pursuant 42-4-1202(3)(b), 4-1406(1), (1982 Supp.), to section requires C.R.S. know, 1973. What the officers did how- of a vehicle driver involved traffic ever, accident, requested, was sufficient to meet test of if so “remain at the probability” police “sufficient to arrest. scene the accident until have [the] completed arrived at the scene and their makes majority much of the fact words, investigation thereat.” un- other intoxication, other indicia such as statute, der police have authori- slurred were speech staggering gait, ty they to detain the drivers until have not exhibited the defendant. I believe That completed investigations. is requirement such indicia thwarts did they here. drunk-driving administration above, laws. legislature only has seen fit to define distinguish- As mentioned two involving driving different offenses af- ing feature of this case is fact impaired ter while drinking driving warnings given. Curiously, Miranda were — warnings appear alcohol and under the influence these to have converted an 42-4-1202(2)(b), (c), proper investigatory stop alcohol. otherwise into an Section arrest, (1982 Supp.). A that we illegal despite blood-alcohol the fact 0.10 officer’s percent previously police of between 0.05 held “stop” either a or an

characterization controlling. People v. Ste-

“arrest” is not Pancoast,

vens, also supra. See (1982) (The police officer’s whether sus-

subjective state of mind as to to leave is not the standard

pect is free person whether and when a

determining arrested.) perceive I am unable to

has been creating a disincentive for

the benefits of warnings. The give Miranda warnings Miranda

conclusion that because interrogated person if a is required

are is under arrest

while under given, logi- are warnings

if the Miranda

cally flawed. majority doing my opinion, that it is things.

of two One alternative is 42-4-1406(1) unconstitu-

declaring permitting silentio as an “arrest”

tional sub alterna-

without cause. other warnings of Miranda giving

tive is that the under sec- permissible

converts a detention ar- 42-4-1406(1) impermissible

tion into an warnings given

rest if the time ex-

when cause to arrest does not of these results desir-

ist. believe neither

able. reasons, I

For all of the above do not

believe that the defendant’s written state-

ment should suppressed.

LEE, J., joins in dissent. *7 Colorado,

The PEOPLE of the State

Plaintiff-Appellant, THOMPSON, Defendant-Appellee.

Caleb

No. 81SA435. Colorado,

Supreme Court of

En Banc.

Dec. Jr., Gallagher, Atty.,

Robert J. Dist. Richardson, Deputy P. Dist. Catherine Littleton., plaintiff-appellant. Atty., notes he would have to check his to refresh (1973). question The of whether a his recollection. is a impaired by is person’s ability one in absence of ob- highly subjective The trial that the de- court determined of content. jective measures blood-alcohol fendant was advised of appropriately was held more suppression hearing That the and his rights under Miranda is the years than two after the accident voluntarily written statement was made. appear failure to when result of defendant’s However, there was no the court concluded hardly equitable to conclude required. It is cause because the mere probable to arrest when the probable cause does not exist smell of alcohol defendant’s breath mem- has absented himself until defendant for does not warrant an arrest drunk driv- case, such a ories have dimmed. ing. deprived is suppression court at not find majority opinion proba- The does particularized perceptions of “all the we is ble cause to because all know at the scene.” may meaningful been so have in- a car Id. of volved in an and he had an odor accident is the touch- Probability, certainty, view, my alcohol about there was him. reasonableness, California, Hill v. stone of cause the officer probable to arrest because 28 L.Ed.2d 484 91 S.Ct. U.S. had knew that a accident occurred serious we under (1971), it is this standard a.m., 1:00 defendant approximately in ar- officer should the act of the drivers, review of orally admitted he was one have stated resting defendant. As we and he had odor of alcoholic probabili- often, cause involves no so about him. The fact there was technical, are factual ties “are not but in the evidence record questions of life raises a practical everyday percent presumption impairment, of men whose is upon prudent yet which reasonable and slightly over Baird, act.” often will People percent gross 0.05 not exhibit the seemingly required by 470 P.2d also indicia majority. 1336; Nevertheless, Stevens, Drap- reflexes, coordination, their States, er v. judgment United to an diminished extent them rendering L.Ed.2d 327 less fit to drive. fre- spoken The citizens of Colorado have Even if cause did exist in case, drunken I quently of their concern about would suppress the state- ment, highways. mortality drivers on The because do not believe full demon- injury clearly required statistics such a circum- strated drive persons majority’s who drink and stance. conclusion that are a themselves danger to and others. part under arrest is based in legislature passed, upon has and the Governor the fact after legislation citizens approved, protect made his statement he was handcuffed and major portion and has the re- placed taken “downtown” for ad- enforcing ministering these laws on the sponsibility fact, blood-alcohol test. That law, police. “implied however, consent” is largely ques- irrelevant to the 42-4-1202(3)(a), (1982 Supp.), tion of whether the demonstrates the well-founded concern of the time arrest at he made statement. legislature getting drinking drivers record, is nothing except There in the highway off the lives protecting the giving of Miranda warnings, distinguish and property of citizens. this case from the thousands accident us, In the case before knew every year officers cases that occur in Colorado. accident, that a had at 1:00 serious accident occurred When there is a traffic the police a.m. and report the defendant had the smell of fill out an generally based alcohol about him. did not Obviously, they upon parties, told them know whether the defendant had consumed upon Quite well as own observations.