concurring in the judgment.
I concur in the judgment of reversal, but on a different basis entirely.
If I believed that the objective voluntariness standard of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), had to be applied in this case, I would support the majority’s interpretation of it. As the majority opinion demonstrates, unless a police officer in a routine traffic investigation has used so much coercion that he overbears the will of a reasonably mature, experienced, and intelligent driver, the person’s performance of a roadside sobriety test, as a matter of law, will be found to be the product of his own “essentially free and unconstrained choice.” Id. at 225, 93 S.Ct. at 2047, 36 L.Ed.2d at 862.
In my view, however, when a driver has been stopped, based upon “articulable and reasonable suspicion,” of the officer, see United States v. Cortez, -U.S. -, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), a roadside sobriety test incident to the stop, which merely elicits an exhibition of physical characteristics, People v. Ramirez, Colo., 609 P.2d 616 (1980), does not require the “consent” of the driver if the police officer reasonably suspected that he has been driving under the influence of alcohol. In reality we know a driver’s performance of such a test cannot be physically compelled and retain any validity. It cannot be conducted without the subject’s active cooperation. People v. Ramirez, supra; see Lanford v. People, 159 Colo. 36, 409 P.2d 829 (1966). Thus, a driver’s willingness to perform the test, if circumstances justify the stop and the officer requests that it be taken, is all the consent that is constitutionally required.
It is a truism that the Fourth Amendment does not prohibit all searches and seizures of potential evidence, only “unreasonable” ones. The cooperation or consent of a criminal suspect is not invariably required, even when investigating police proceed without a warrant. E. g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (general search of a person incident to a lawful arrest); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (fingernail scrapings seized prior to formal arrest); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplar produced for grand jury without preliminary showing of reasonable suspicion); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplars obtained during custodial interrogation); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (physical characteristics and voice pattern displayed at police lineup); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 *1079(1966) (blood sample taken and analyzed over objection of driver suspected of driving while intoxicated).
Fourth Amendment analysis generally proceeds on two different levels. See United States v. Dionisio, supra. The first involves the constitutionality of the arrest or detention of the person, the second the constitutionality of the search and seizure of contraband, fruits, instrumentalities, or evidence of crime. Where a person has been seized unlawfully, evidence which is obtained as a result of this seizure is tainted and cannot be used against the person. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (prolonged sta-tionhouse custody of suspect is functional equivalent of arrest and must be supported by probable cause); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (dragnet seizure, unsupported by warrant based on reasonable suspicion, does not allow use of fingerprints obtained as a result). However, where a person is seized lawfully, or is lawfully in the presence of governmental officers, our inquiry turns to the nature of the search which is an incident of the primary investigatory intrusion. See Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Dionisio, supra; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of the search or seizure requires a balancing of the rights of the individual and the needs of society. Delaware v. Prouse, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Robinson, supra (Marshall, J., dissenting); Terry v. Ohio, supra.
In the present case, the initial contact between the suspect and the officer was initiated by the defendant and had no Fourth Amendment implications whatsoever. There is nothing in the United States or Colorado Constitution that prevents a policeman from addressing questions to or requesting cooperation from anyone who is free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Terry v. Ohio, supra (White, J., concurring). But if we presume that the defendant here would have been detained if he had tried to leave the scene, after he had voluntarily engaged the attention of the officer who responded to the accident report, the officer’s initial intrusion upon his privacy was justified by information that the defendant had been in an automobile accident, that he had left the scene, and that he may have been drinking when the accident took place. See United States v. Cortez, supra. From the defendant’s own breath, slurred speech, and lack of coordination, the officer had reason to suspect (and, in my opinion, probable cause to believe) that he had been driving while impaired or intoxicated by alcohol.
Automobile accident investigation, like enforcement of traffic laws in general, implicates society’s interests in the safety of the public roads. Intoxicated drivers create obvious hazards to themselves and others. Yet, like other drivers, their activity has been historically subject to administrative regulation through licensing and registration procedures. See Title 42, C.R.S.1973. Cf. United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (federal regulation of liquor). All drivers in Colorado are deemed to have given their consent to a chemical testing of their breath, blood, or urine for the purpose of determining the alcoholic content of their blood, if an arresting officer reasonably believes they may have been driving while intoxicated or impaired. Section 42-4-1202(3Xa)(b), C.R.S. 1973. Their refusal to comply with such chemical testing does not automatically insulate them from negative consequences. See section 42-4-1202(3)(e), C.R.S.1973 (1980 Supp.). The right to refuse is statutory and does not apply in every case. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970). There is certainly no constitutional basis under the Fourth Amendment to require the driver’s consent to chemical testing. Id.
An individual’s right to drive on the public roads of Colorado is far from absolute, and consequently a person’s expectation of privacy in the exercise of this right must take reasonable account of the need for *1080public regulation and traffic safety. Chemical testing designed to determine the alcoholic content of blood is equally, if not more, intrusive in practice than a roadside sobriety test. This search — the display of physical characteristics — and this seizure— the observation and recording of the results of the test — involve none of the probing into an individual’s private life and thoughts that marks an interrogation or a search for concealed evidence of criminal activity. See United States v. Dionisio, supra; Davis v. Mississippi, supra. In light of such cases as Schmerber v. California, supra, and Terry v. Ohio, supra, where the criminal suspect has no constitutional basis to invalidate or terminate the officer’s Fourth Amendment intrusions, it seems reasonable to allow an officer to request a driver to perform a roadside sobriety test. The decision to cooperate, as distinguished from consent, remains entirely in the driver’s own power. Unlike Schmerber or Terry, the officer cannot enforce compliance with this search.
An officer’s authority to request roadside sobriety testing should be judged in relation to the constitutional limitations that restrict the scope of all temporary investigative detentions. The well-known standards established in Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971) provide sufficient protection to all drivers against arbitrary official interference with their privacy: (1) the stop of an automobile cannot be justified unless the officer has at least a reasonable, articulable suspicion that the driver or one of the car’s occupants has been or will be involved in criminal activity, that someone in the vehicle has need of the officer’s assistance, or that enforcement of a valid regulation is called for; (2) the purpose of the stop must be the investigation of criminal activity or the exercise of some valid administrative function; (3) the character of the detention, in terms of duration and scope of intrusion, must relate to the purpose for its initiation. •
In a stop for the investigation of “drunk driving,” where the appearance, speech, and behavior of the driver provide the officer a reasonable basis to suspect that the driver has been driving while intoxicated, see People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976), it is constitutionally permissible for the officer to request the driver tó take a roadside sobriety test without first obtaining his consent. The driver’s compliance with roadside sobriety testing gives tangible evidence of his physical condition. People v. Ramirez, supra. His refusal to comply leaves the officer with little choice but to complete a formal arrest, if the available facts support it, and to enforce the implied consent law. In either circumstance, the safety of the driver and the public is, and should be, the primary concern of the officer.
The type of consent which the majority imposes as a constitutional prerequisite to roadside sobriety testing is frequently described as an exception to the warrant requirement of the Fourth Amendment. But in the context of the routine enforcement of traffic laws, it becomes a confusing, paradoxical concept for anyone to grasp, let alone a police officer who is expected to depend upon his understanding of it in practice.1 A routine automobile stop for traffic investigation purposes is certainly not a situation where an officer comes prepared with warrant in hand. I see no constitutional reason why taking fingerprints, requiring an appearance in a lineup, requiring the production of voice or handwriting exemplars, or extracting blood from unwilling criminal suspects does not require their consent, but a roadside sobriety test, which by its very nature depends upon the cooperation of its participant, does.
I would reverse the trial court because the police officer in this case conducted his traffic investigation in accord with the Fourth Amendment. See Stone v. People, supra. The test itself was not an unreason*1081able intrusion upon the defendant’s privacy, given the purpose of the detention. The defendant’s “consent” to take the test is not a constitutional prerequisite to his performance of it. See People v. Sanchez, supra.
. The majority has not distinguished between traffic stops supported by reasonable suspicion and those supported by probable cause. It is not clear to me whether an officer proceeding with probable cause to arrest a suspect for driving while intoxicated must also depend upon the driver’s “consent” in order to ask him to perform roadside sobriety tests.