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Field Sobriety Test
As part of the alcohol influence report form, most police officers will subject a drunk driving suspect to field sobriety tests at the station. In Muniz, the court reaffirmed that requiring a driver to perform field sobriety tests does not compel him or her to provide testimonial evidence. Therefore, there is no right to refuse to perform the test as well as no right to consult with an attorney beforehand. Muniz at 602-03. The Muniz rationale would likely allow the police to instruct an arrested defendant to perform field sobriety tests without having to advise the defendant of Miranda rights.
Note: Although there is no constitutional right to refuse to perform the field sobriety tests, unless there is a penalty, statutory or common law, for refusing to submit to a field sobriety test, there should be no adverse inference drawn from a defendant’s refusal to participate.
In a number of jurisdictions, even if the defendant requests to speak with an attorney, the police officer may still instruct the defendant to perform a field sobriety test prior to permitting the defendant to speak with counsel. See Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982) (court upheld police testimony about the defendant’s performance on field sobriety tests even where defendant had asked for counsel prior to submitting to tests, reasoning that “field sobriety tests do not elicit testimonial or communicative evidence and therefore do not trigger the protection afforded by the Fifth Amendment.”).
Even if the performance of the field sobriety test may not be incriminating, the suspect who performs the physical test in response to police instructions will often make statements that are incriminating. In Muniz, once the arresting officer gave the defendant instructions about the field sobriety tests, Muniz made incriminating statements, some of which suggested the reasons why he could not properly perform the test. The Court held that these statements, made while Muniz was under arrest but before he was advised of his Miranda rights, were admissible because even though they were testimonial, Muniz was not responding to custodial “interrogation.” Muniz at 602-05. The Court reasoned that the “instructions were not likely to be perceived as calling for any verbal response [because they] were not ‘words or actions’ constituting custodial interrogation.” Id. at 603.
The Court did not decide the “custodial interrogation” status of certain other common practices (occurring in Muniz), such as requesting that the arrestee count aloud from one to nine while performing the “walk and turn” test, or count aloud from one to thirty while balancing during the “one leg stand” test. Therefore, these issues are still open from a constitutional perspective.
Although the police could testify concerning statements made by Muniz not in response to “interrogation,” questions about Muniz’s drinking during the field sobriety tests would have amounted to interrogation, and the answers to those questions would have been suppressed as a violation of Miranda. See Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982) (defendant told police he would not say or do anything without his counsel present, but agreed to submit to a breath test and field sobriety tests after being informed that his license would be suspended if he did not. During testing defendant was asked certain questions regarding his alleged intoxication; to some of those questions he gave incriminating responses, and the court held that the oral statements made by the defendant were elicited in violation of Miranda rights and were properly suppressed); see also State v. Fields, 294 N.W.2d 404 (N.D. 1980); State v. Darnell, 8 Wn. App. 627, 508 P.2d 613, cert. denied 414 U.S. 1112 (1973).
If the defendant has been arrested, the police may require the defendant to perform standard field sobriety tests without giving Miranda warnings, but only those tests that measure physical coordination, reflexes, dexterity and balance. The police may also testify how the defendant performed on the field sobriety tests and what, if anything, the defendant said while performing the tests or refusing to perform them. The police may not, however, attempt to elicit any incriminating response from the suspect. Muniz at 602-05.
Certain Kinds of Field Sobriety Tests Require Miranda Warnings
Some field sobriety tests do require Miranda warnings-those that not only require the defendant to perform physical acts, but also require the defendant to answer certain questions. For example, in Muniz, in addition to the physical field sobriety tests, the police asked Muniz to perform verbal tests, including a request that he give the date of his sixth birthday. He did not know the proper date, and his answer amounted to an incriminating response because it demonstrated a confused mental state. The question was incriminating not only because of the way he answered, but also because of what he said. Id. at 599. See also Allred v. State, 622 So.2d 984 (Fla. 1993). The police also asked this question because they were looking for an incriminating response, hoping that Muniz answer incorrectly and show that he was intoxicated. The court correctly concluded that the question was not a “routine booking question” designed to obtain mere data for case processing, but rather was custodial interrogation intended to produce a testimonial response. Muniz, at 592-600. Since Miranda warnings were not given, and there was no knowing and intelligent waiver of the right, the response was not admissible at trial. Id.
The Court did not have to rule on whether the police testimony concerning counting aloud while performing a physical dexterity test was admissible because Muniz had counted accurately during the “one leg stand” test and he was not required to count during the “walk and turn” test. Therefore, the prosecution did not produce any incriminating evidence.
A number of state courts have held that verbal field sobriety tests, including counting and alphabet tests, are testimonial in nature and implicate the Fifth Amendment privilege against self-incrimination. See Allred v. State, 622 So.2d 984 (Fla. 1993); State v. Fish, 321 Ore. 48, 893 P.2d 1023 (1995); Commonwealth v. McGrail, 419 Mass. 774, 647 N.E.2d 712 (1995). But see State v. Wright, 11 6 N.M. 832, 867 P.2d 1214 (1993).
The cases holding that verbal field sobriety tests implicate Miranda and the Fifth Amendment privilege against self-incrimination are the better reasoned ones. Thus, if the police have failed to give Miranda warnings prior to requesting that defendant perform verbal field sobriety tests, the defense should aggressively move to suppress those responses.
Before anyone can be arrested and charged with the crime of driving under the influence, the officer so arresting or so charging must have had probable cause to stop the vehicle the individual was driving in, require the individual to perform field sobriety tests, administer a chemical test to the individual or search the individual’s person or vehicle. The United States Constitution’s Fourth Amendment, which is applicable to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizures. Therefore, the police must have probab le cause to stop and question the driver of a car for suspicion of drunk driving before such questioning, and searches incident thereto, will be upheld. Again, as with many of the other motions, a motion based on lack of probable cause can either be brought as a motion to dismiss, (when the evidence obtained, if precluded from production into evidence, will warrant a dismissal of the charges), or, in the alternative as a motion to suppress, (when the evidence obtained, if precluded at trial, will merely prohibit the state from presenting part of its case). The analysis of the cases presented in this section applies either to motions to suppress or to dismiss.
If you have questions about the field sobriety test in San Diego contact Attorney Vik Monder at 619.405.0063 or visit San Diego’s Best DUI Attorney