The body cam video of Tony Romo is quite interesting, and if social media posts are indicative of anything, it seems like just about everyone has watched it in the last week. (And now he’s been benched by CBS sports.) As an attorney who specializes in DUI cases in Colorado, it raised a lot of questions about DUI arrests that I hear all the time. So, here’s my take on some things in the video.
Did the police violate his constitutional rights to an attorney?
In the video, Tony is asked to get out of his car to do field sobriety tests. He says he would like to call his attorney. The officer repeatedly ignores his question and continues to ask him to get out of his vehicle.
If this had happened in Colorado, this would generally not be considered a violation of his rights. Before arrest, there’s no right to counsel. So, during the initial traffic stop, and at the point of any field sobriety testing, the officer doesn’t have to let you consult your attorney. The Sixth Amendment that gives you a right to an attorney doesn’t kick in until you’re actually arrested. So, in Colorado the officer would have the right to question Romo and to ask him to perform field sobriety tests without allowing him to call his attorney at that time.
Then interestingly, in Colorado, after the officer does arrest you and they request that you submit to an evidentiary blood or breath test, you still don’t get to consult an attorney at that point. Colorado courts consider that decision point as not being a “critical stage” requiring counsel. So, you don’t get the right to call your attorney to ask them about that test either. If you say that you won’t decide if you’re going to do the chemical test until you talk with an attorney, that’s legally treated as a “refusal.” That triggers the same consequences (including automating license revocation) as an outright refusal.
So, from a practical standpoint: someone who is pulled over for a DUI in Colorado can ask to call their attorney at any point, but the officer isn’t obligated to let them do that before they decide on doing the chemical blood or breath test. By asking for their attorney, that can be used against them as a refusal. The right to an attorney meaningfully kicks in once official charges have been filed and the case starts moving through the court system.
A related question that people ask me all the time is this: “The officer asked me questions before reading me my rights, so aren’t those statements inadmissible?” As described above, your Miranda rights, or the right to an attorney, don’t kick in until you’re actually arrested. Therefore, any statements that you make to the police before your arrest, and anything you say or do (which is now all being recorded on bodycam video), is typically admissible as evidence in your case.
Did Romo have to do the Sobriety Tests?
Tony Romo was asked to do field sobriety tests and a “PBT.” Was he required to do those? Again, Romo’s arrest happened in Wisconsin, but if this had happened in Colorado, the general answer is that no, you are not required to do those tests. You are allowed to decline the field sobriety tests such as walking on the line, standing on one leg, and following the moving pen with your eyes. Those tests are optional, considered voluntary, and sometimes you can do poorly on them for reasons other than alcohol intoxication, so it’s often recommended that you decline to do them. They could make you look guilty of impaired driving even when you aren’t impaired.
Similarly, there are two categories of Blood Alcohol Concentration (BAC) tests that are done at different time points. In the bodycam video of Tony Romo, after doing the field sobriety tests, the officer asks him if he is “willing to submit to a PBT.” The PBT is a Preliminary Breath Test, done by a handheld device on the roadside (or in this case, in the police garage?) before arrest. Because there are issues with its accuracy, the PBT is not required in Colorado, and refusing to do it can’t be used against you.
So, officers can offer you this PBT test, but can’t require you to do it. The officer in Romo’s video says, “it does not determine the results of my test”, rather than saying that it’s not required. Romo states that he has heard from multiple lawyers that you shouldn’t do that test. He is correct, that because of the issues with these tests, in most cases it is not recommended that you do the PBT breath test.
The rules for preliminary breath tests are in contrast to the evidentiary chemical tests that are done after the time of arrest. In Colorado once you are arrested, you are given the choice of doing a blood or breath test, that test must be done within two hours of the time you were initially stopped. The Express Consent law says that if you refuse this test, there are consequences and the refusal can be used against you in court.
Other things I see in the Field Sobriety Tests
Some of the instructions for the “walk-the-line” test were not included in the video, so it’s impossible to know exactly what he was told. In this test, the suspect is supposed to walk heel-to-toe, meaning that the heel of one foot should touch the toe of the other. While Romo wasn’t doing that, it wasn’t clear that he understood the instructions. If I were told to “walk heel to toe,” I don’t think I’d know that the feet were supposed to touch!
Similarly, on that test, they did not have him walking on an actual line on the ground – instead they had him walking a few feet away from a line. In trial, and attorney could question why they decided to do this test without a line, instead of on the line that was just a few feet away. And, in the test, he walked straight ahead, as if on a line, quite well.
Additionally, the body cam video wasn’t always showing Romo’s legs and full body during some of the tests. While it’s not legally required for law enforcement to have body cam video of all of these tests, not having it opens up the potential of a whole line of questioning for the defense attorney at trial. If I was a juror in a trial for this case, I would want to see the full feet and legs when he is asked to stand on one foot and balance! It looked like Romo wasn’t actually doing too badly on this task, but since you couldn’t see everything, it’s hard to evaluate.
Romo’s Behavior in the Video
Finally, one of the things that can be pretty important in a case like this is the behavior of the suspect. Was the person polite to the officers and compliant with their requests? Romo was consistently respectful and friendly with the officers throughout the interaction. He wasn’t slurring his words, did not appear highly intoxicated, and he did not admit to consuming alcohol. His stretching before the field sobriety tests was entertaining and maybe could be even a little endearing! If a jury saw this video, they would not come away from it disliking him.
Of course, there are things that we can’t get from the video: for example, we don’t know what his driving was like, we can’t smell if there is alcohol on his breath, or see if his eyes are bloodshot. But it does seem like this is not going to be a slam-dunk case for the prosecution. Or maybe I should say, the case is probably not like a first-and-goal from the one-yard line.
Have Questions about a DUI case here in Colorado?
If you have questions about a DUI case here in Colorado, call Churchill DUI Defense at 303-832-9000. Kevin Churchill has been a DUI attorney in the front range for over 27 years. Call today for a free consultation about your case.