[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]
Defendant Berg drove her car into a roadside ditch near the home of an off-duty New York State Trooper. The Trooper went to investigate the accident scene and observed that Defendant appeared drunk. A responding officer arrived to investigate. Shortly after, the responding officer and the off-duty Trooper found Defendant hiding nearby.
After Defendant presented false identification she was taken to the police station. There, the officer asked her to perform four specific field sobriety tests. Defendant refused, was placed under arrest, and given Miranda warnings. Defendant was later indicted for the aggravated unlicenced operation of a vehicle and felony driving while intoxicated.
After a Huntley hearing, the County Court ruled that evidence of Defendant's refusal to take the tests was not admissible because no prior Miranda warnings were given. On review, the Appellate Division found the Miranda warnings unnecessary, and reversed. Defendant appealed.
Whether evidence of a suspected drunk driver's refusal to undergo certain field sobriety tests is admissible when no prior Miranda warnings were given.
Yes. A mere request to take a field sobriety test does not constitute a "custodial interrogation," and therefore Miranda warnings are not necessary.
Under the Fifth Amendment of the U.S. Constitution and New York Constitution article I, section 6, "No person shall be . . . compelled in any criminal case to be a witness against himself." Miranda v. Arizona, 384 U.S. 436 (1966), established that the privilege against self-incrimination protects individuals from informal compulsion by law-enforcement during "in custody" questioning or from legal compulsion. Miranda protects against compelled testimonial or communicative evidence, but does not reach "real or physical evidence."
In People v. Thomas, 46 N.Y.2d 100 (N.Y. 1978), the court held that the constitutional protection against self-incrimination applies only to communicative or testimonial evidence that has been compelled. Evidence is considered testimonial or communicative when it reveals a person's subjective knowledge or thought processes. See People v. Hager, 69 N.Y.2d 141, 142 (N.Y. 1987). The Hager court found that since "physical performance tests do not reveal a person's subjective knowledge or thought processes, but rather, exhibit a person's degree of physical coordination for observation by police officers," field sobriety tests do not constitute testimonial or communicative evidence. See id.
The Court analogized the present case to the approach used in the context of chemical analysis tests. Officers in both situations are unlikely to compel suspects to refuse to take such tests. They want suspects to take field sobriety and chemical analysis tests because the results provide stronger evidence of intoxication or non-intoxication.
The Court concluded that evidence of a defendant's refusal to take field sobriety tests as well as the results of such tests are admissible despite the absence of Miranda warnings. Miranda warnings are only triggered when the suspect is subject to custodial interrogation. Because the refusal to take field sobriety tests is not the product of custodial interrogation or a legally cognizable compulsion, evidence of such refusal is admissible despite the failure of the police to administer Miranda warnings.
One question left unanswered by the court is whether Defendant's refusal to perform the field sobriety tests was testimonial. By deciding that Defendant's refusal was not the result of custodial interrogation, the Court was able to avoid this issue. Given the strong analogies drawn by the Court between field sobriety tests and chemical analysis tests, coupled with the Court's previous determination that refusal to submit to chemical analysis tests is admissible, it is likely that when confronted with this issue in the future, the Court will hold such refusals admissible.
An area of potential future uncertainty is the court's determination that reciting the alphabet and counting are not testimonial or communicative. The Court refers to the U.S. Supreme Court's decision in Pennsylvania v. Muniz, 496 U.S. 582 (1990). There, the Supreme Court left open the question whether counting during a field sobriety test is testimonial. Thus, while the Court of Appeals has conclusively determined that such tests are not testimonial or communicative, a contrary decision by the Supreme Court is possible and could undermine this holding.
The California Court of Appeals dealt with a similar issue in Whalen v. Municipal Court, 274 Cal. App. 2d 809 (Cal. App. Ct. 1969). In Whalen, the court held that evidence secured as a result of field sobriety tests is not within the protection of the privilege against self-incrimination because it is not communicative or testimonial in nature.
In Stowell v. Dep't. of Transp., 514 A.2d 438 (DC App. Ct. 1986), the District of Columbia Court of Appeals found that Miranda privilege against self-incrimination was not implicated when the defendant refused to submit to alcohol tests. The same court came to a different conclusion on a similar issue in Stuart v. District of Columbia, 157 A.2d 294 (DC App. Ct. 1960). In this case, the court found that evidence of refusal to submit to testing was inadmissable because the assertion of the right to refuse cannot be interpreted as an admission of guilt.
The Texas Criminal Court of Appeals held that the recitation of the alphabet and counting backwards as field sobriety tests are not testimonial in nature for purposes of the right against self-incrimination. See Gassaway v. Texas, 957 S.W.2d 48 (Tex. Crim. App. 1997).
In People v. Miller, 447 N.E.2d 1060 (Ill. App. Ct. 1983), the Illinois Appellate Court held that the results of field sobriety tests, or fact of refusal to perform the tests, are admissible. The court also held that failure to warn of admissibility only goes to the weight of the evidence, not to its admissibility. The same court held that admission of refusal to take a blood alcohol test does not violate the Fifth Amendment in People v. Bugbee, 559 N.E.2d 554 (Ill. App. Ct. 1990). This court also held that recitation tests are not testimonial since they do not reveal subjective knowledge or thought processes.
The Massachusetts Court of Appeals held that a field sobriety test request does not constitute a custodial interrogation. See Commonwealth v. Cameron, 689 N.E.2d 1365 (Mass. App. Ct. 1998). The court also found that a police officer is not required to give Miranda warnings prior to field sobriety tests. The court held that the tests are not testimonial or communicative in nature, and are thus not within the protection of the privilege against self-incrimination.