dissenting:
I respectfully dissent from Part II of the majority opinion holding that there was not probable cause to take the defendant into custody and that probable cause was necessary.
A brief review of the facts and circumstances surrounding this case, in addition to those set out in the majority opinion, will be helpful. The accident in which the defendant was involved took place on May 3,1980. He was charged with vehicular assault, driving under the influence of intoxicating liquor, and reckless driving. He failed to appear in court as required, and an alias *414warrant for his arrest was issued on October 20, 1980. It was not until April 23, 1982, that the defendant was apprehended. His trial began on July 28, 1982, and on the next day, the defendant filed his motion to suppress, which is the subject of this interlocutory appeal.
Officer Eaton testified that the accident which he and his partner investigated on May 3, 1980, was serious enough to call in the traffic investigators. He further testified that the defendant approached him and his partner and stated that he was the driver of one of the cars involved in the accident and he had gone to call the police and just returned. Officer Eaton established without contradiction that the defendant had an odor of alcoholic beverage about him but was not staggering, did not have trouble walking, and seemed to understand the Miranda advisement that he had been given.
During the course of his examination and cross-examination, Officer Eaton was frank to admit that because of the passage of over two years from the date of the accident he could not remember every detail, and on more than one occasion stated that he would have to check his notes to refresh his recollection.
The trial court determined that the defendant was appropriately advised of his constitutional rights under Miranda and his written statement was voluntarily made. However, the court concluded there was no probable cause to arrest because the mere smell of alcohol on the defendant’s breath does not warrant an arrest for drunk driving.
The majority opinion does not find probable cause to arrest because all we know is that the defendant was driving a car involved in an accident and he had an odor of alcohol about him. In my view, there was probable cause to arrest because the officer knew that a serious accident had occurred at approximately 1:00 a.m., the defendant orally admitted he was one of the drivers, and he had an odor of alcoholic beverage about him. The fact that there was no evidence in the record of the suppression hearing to show that the defendant caused the accident is not relevant, as the purpose of the drunk-driving laws is not merely to punish those drivers who commit traffic violations while their ability is impaired by alcohol. See Johnson v. Motor Vehicle Division, 38 Colo.App. 230, 556 P.2d 488 (1976).
We have said on numerous occasions that probable cause to arrest exists where the facts and circumstances within an officer’s knowledge are sufficient to warrant a cautious and prudent officer’s believing, in light of his training and experience, that an offense has been committed and the person arrested committed it. People v. Vigil, 198 Colo. 185, 597 P.2d 567 (1979); People v. Gonzales, 186 Colo. 48, 525 P.2d 1139 (1974). We have also held that probable cause may be based on the personal observations of the arresting officer. People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978). It has often been noted that experienced police officers “naturally develop an ability to perceive the unusual and suspicious which is of enormous value in the difficult task of protecting the security and safety of law-abiding citizens.” People v. Gale, 9 Cal.3d 788, 795-96, 108 Cal.Rptr. 852, 858, 511 P.2d 1204, 1210 (1973). The question of whether a person’s ability is impaired by alcohol is a highly subjective one in the absence of objective measures of blood-alcohol content. That the suppression hearing was held more than two years after the accident is the result of defendant’s failure to appear when required. It is hardly equitable to conclude that probable cause does not exist when the defendant has absented himself until memories have dimmed. In such a case, the court at the suppression hearing is deprived of “all the particularized perceptions which may have been so meaningful at the scene.” Id.
Probability, not certainty, is the touchstone of reasonableness, Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), and it is under this standard that we should review the act of the officer in arresting the defendant. As we have stated so often, probable cause involves probabilities that “are not technical, but are factual *415and practical questions of everyday life upon which reasonable and prudent men act.” People v. Baird, 172 Colo. 112, 119, 470 P.2d 20, 24 (1970). See also People v. Stevens, 183 Colo. 399, 517 P.2d 1336; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).
The citizens of Colorado have spoken frequently of their concern about drunken drivers on the highways. The mortality and injury statistics have clearly demonstrated that persons who drink and drive are a danger to themselves and others. The legislature has passed, and the Governor has approved, legislation to protect citizens and has placed a major portion of the responsibility for enforcing these laws on the police. The “implied consent” law, section 42-4-1202(3)(a), C.R.S.1973 (1982 Supp.), demonstrates the well-founded concern of the legislature of getting drinking drivers off the highway and protecting the lives and property of citizens.
In the case before us, the officers knew that a serious accident had occurred at 1:00 a.m. and the defendant had the smell of alcohol about him. Obviously, they did not know whether the defendant had consumed enough alcohol to raise the presumption that he was driving under the influence of intoxicating beverage or while his ability to drive was impaired. That knowledge could be obtained only after he was given the opportunity to take a blood or breath test pursuant to section 42-4-1202(3)(b), C.R.S. 1973. What the officers did know, however, was sufficient to meet the test of “sufficient probability” to arrest.
The majority makes much of the fact that other indicia of intoxication, such as slurred speech and a staggering gait, were not exhibited by the defendant. I believe that requirement of such indicia thwarts the administration of the drunk-driving laws. The legislature has seen fit to define two different offenses involving driving after drinking — driving while ability impaired by alcohol and driving under the influence of alcohol. Section 42-4-1202(2)(b), (c), C.R.S.1973 (1982 Supp.). A blood-alcohol content of between 0.05 percent and 0.10 percent raises a presumption of impairment, yet a person whose content is slightly over 0.05 percent often will not exhibit the gross indicia seemingly required by the majority. Nevertheless, their reflexes, coordination, and judgment are diminished to an extent rendering them less fit to drive.
Even if probable cause did not exist in this case, I would not suppress the statement, because I do not believe that full probable cause is required in such a circumstance. The majority’s conclusion that the defendant was under arrest is based in part upon the fact that after the defendant made his statement he was handcuffed and taken “downtown” for the purpose of administering a blood-alcohol test. That fact, however, is largely irrelevant to the question of whether the defendant was under arrest at the time he made his statement.
There is nothing in the record, except the giving of Miranda warnings, to distinguish this case from the thousands of accident cases that occur every year in Colorado. When there is a traffic accident, the police generally fill out an accident report based upon what is told them by the parties, as well as upon their own observations. Quite often, the drivers’ statements are taken in the patrol car. Although the trial court based its decision on the police officer’s testimony that the defendant was not free to leave, that is a factor that is present in most accident investigations. Section 42-4-1406(1), C.R.S.1973 (1982 Supp.), requires the driver of a vehicle involved in a traffic accident, if so requested, to “remain at the scene of the accident until [the] police have arrived at the scene and completed their investigation thereat.” In other words, under the statute, the police have the authority to detain the drivers until they have completed their investigations. That is what they did here.
As mentioned above, the only distinguishing feature of this case is the fact that Miranda warnings were given. Curiously, these warnings appear to have converted an otherwise proper investigatory stop into an illegal arrest, despite the fact that we have previously held that the police officer’s *416characterization as either a “stop” or an “arrest” is not controlling. People v. Stevens, supra. See also People v. Pancoast, 644 P.2d 314 (1982) (The police officer’s subjective state of mind as to whether suspect is free to leave is not the standard for determining whether and when a person has been arrested.) I am unable to perceive the benefits of creating a disincentive for the police to give Miranda warnings. The conclusion that because Miranda warnings are required if a person is interrogated while under arrest, a person is under arrest if the Miranda warnings are given, is logically flawed.
In my opinion, the majority is doing one of two things. One alternative is that it is declaring section 42-4-1406(1) unconstitutional sub silentio as permitting an “arrest” without probable cause. The other alternative is that the giving of Miranda warnings converts a detention permissible under section 42-4-1406(1) into an impermissible arrest if the warnings are given at a time when probable cause to arrest does not exist. I believe neither of these results desirable.
For all of the above reasons, I do not believe that the defendant’s written statement should be suppressed.
LEE, J., joins in this dissent.