Field Sobriety Testing and the Fifth Amendment

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Most drivers stopped on suspicion of impaired driving are asked to submit to field sobriety tests before they are arrested.  Those tests often include the three standardized tests, which researchers have found to enhance officers’ ability to accurately identify impairment:  the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus tests. Officers sometimes use other types of field tests that have not been validated, such as asking participants to recite the alphabet or to conduct counting exercises. Evidence gained from any of these pre-arrest tests may be admitted against the defendant at trial without running afoul of the Fifth Amendment right to be free from self-incrimination.  That’s because suspects aren’t in custody for purposes of the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 (1966) when they are temporarily detained for a traffic stop and are asked a moderate number of stop-related questions. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Braswell, 222 N.C. App. 176 (2012). But what if the suspect is asked to perform field sobriety tests after he is arrested?  Must he first be provided Miranda warnings?

Generally no.

Why?  Because the evidence gathered usually is physical rather than testimonial or communicative in nature.

Case in point. In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the United States Supreme Court considered whether a trial court erred in admitting a videotape of the defendant filmed after his arrest on impaired driving charges but before he was given Miranda warnings. The videotape included footage of the defendant answering questions at the booking center, including:  “[W]hen you turned six years old, do you remember what the date was?” The defendant responded, “No, I don’t.” The videotape also showed the defendant performing the three standardized field sobriety tests and captured the statements he made during those tests.

The trial court admitted the videotape and subsequently rejected Muniz’s motion for a new trial based on the tape’s admission. The superior court reversed.  Though it agreed that no Miranda warnings were required before Muniz was asked to submit to a field sobriety test because such tests elicit physical rather than testimonial evidence, the court held that when the tests begin to yield communicative statements, Miranda is implicated.  Thus, the superior court concluded that Muniz’s answer to the question regarding his sixth birthday and the statements and inquiries he made while performing the physical tests were testimonial.  The United States Supreme Court granted certiorari.

Answers to questions at booking. The Supreme Court first considered whether Muniz’s answers to the questions posed at the booking center were testimonial, explaining that if they were, they should have been suppressed since Muniz was not advised of his Miranda rights until after the videotaped proceedings concluded. A majority of the court concluded that Muniz’s answers to questions regarding his name, address, height, weight, eye color, date of birth, and current age did not constitute custodial interrogation, though they disagreed as to why.  Four justices relied on an exception for routine booking questions, while another four held that the statements were not testimonial.  Five justices agreed that the sixth birthday question required a testimonial response, as it left Muniz with the “choice of incriminating himself by admitting that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not then believe to be accurate.”  Id. at 599. The court explained that the incriminating inference of impaired mental faculties stemmed not simply from the fact that Muniz slurred his response (which provided physical rather than testimonial evidence of impairment) but also from the testimonial aspect of the response, which revealed Muniz’s mental confusion.

Videotape of field sobriety tests. The Supreme Court quickly disposed of Muniz’s argument that the videotape of the field sobriety tests, which included Muniz’s verbal statements, should have been suppressed. Noting that the officer’s dialog with Muniz concerning the sobriety tests “consisted primarily of carefully scripted instructions as to how the tests were to be performed,” the court determined that the “instructions were not likely to be perceived as calling for any verbal response and therefore were not ‘words or actions’ constituting custodial interrogation.” Id. at 603. Thus, the court concluded that “Muniz’s incriminating utterances during this phase of the videotaped proceedings were ‘voluntary’ in the sense that they were not elicited in response to custodial interrogation.” Id. at 604.

What about alphabet and counting tests?  Several courts have considered post-Muniz whether non-standardized field sobriety tests that require verbal responses implicate the privilege against self-incrimination. Most have included that such responses are not testimonial; thus no Miranda warnings are required before they are administered.  The Supreme Judicial Court of Massachusetts, Suffolk, explained in Vanhouten v. Commonwealth, 676 N.E.2d 460 (Mass. 1997), that because the alphabet cannot be “fabricated or guessed at” a person reciting it is “not faced with the dilemma of deciding between a true of false answer.” Id. at 466.  “As such,” the court explained, “the recitation of the alphabet lacks inherent communicative value because it does not convey knowledge of any fact specific to the person being questioned.” Id. (citing cases from ten other states reaching the same conclusion with respect to alphabet recitation and counting exercises). The Supreme Court of Florida, however, concluded in Allred v. State, 622 So.2d 984 (Fla. 1993), that suspects who were asked to recite the alphabet from “c” to “w” and to count from 1001 to 1030 were being interrogated as “a reasonable person would conclude that the request to recite, out of the ordinary sequence, letters and numbers was designed to lead to an incriminating response.” Id. at 987.

4 comments on “Field Sobriety Testing and the Fifth Amendment

  1. I never thought Miranda was implicated for sobriety tests given after arrest but more so that officer’s or the court saw the results going toward “probable cause to arrest”. Most DWI cases I get, involving State Troopers, often have the Defendant doing sobriety tests at the police station…after they had already been arrested. This always seems odd to me. I will often argue there was no probable cause to arrest after hearing the Trooper/Officer testify about what he saw, heard or witnessed. Never does much good…and then the officer proceeds to testify about sobriety tests given back at the station. Sobriety tests are not much of a screening device when done after the person is arrest. Although I do see the results have evidentiary value.

  2. The “finger count” and alphabet recitation tests should be used AFTER ascertaining the defendant’s ability, or lack thereof, to perform the other tests, such as medical reasons or physical injury to lower extremities, vertigo, etc. Field sobriety tests also should be conducted “in the field” which in itself constitutes “at the site of the stop” or “within reasonable proximity to the scene,” based upon the concern for the safety of all involved, and certainly not the station or location where the breathalyzer test is conducted. Therefore, I feel that the field sobriety tests are no longer admissible and only the breathalyzer and/or blood content resulting from a legal draw would be allowed. A good argument for the defendant, in my view, would be to claim car (motion) sickness from the transport to the station, particularly if transported in the back seat. The HGN Test is the most foolproof way to obtain the conviction, coupled with breathalyzer results, and other articulable facts referencing the reasonable suspicion for the stop, in my opinion.

    • I’ve never been a fan of doing sobriety tests after arrest. I understand why they are done that way by some agencies though – to get them on video in a safer better lit location, perhaps where they can guarantee level flooring, straight lines, etc.

      However, in this day with dash cams, and increasingly body cameras, the ability to document property a field sobriety test is becoming much easier. Generally speaking, there’s sufficient PC to arrest prior to doing the testing anyway (poor driving, and those violations, plus odor of alcoholic beverage, slurred words, red eyes, etc, these readily visible/audible pieces of evidence) that there’s not a concern about justifying an arrest prior to testing. I just think that it is more fitting to do them on scene because that’s more indicative of their state of impairment at the TIME of the stop. If you arrest and transport then test sometimes 30 minutes to an hour goes by, and if the person just stopped drinking their impairment is only going to go up. So, their ability to perform those tests goes down, and that’s not fair to the driver.

  3. Any thoughts on whether the assertions made by the suspect with respect to the foundational aspects of the SFSTs are “testimonial?” Specifically, “[d]o you understand the test as I have explained/demonstrated it?” as this question seems to place the suspect in the position of (in the words of Supreme Judicial Court of Massachusetts) “fac[ing ] the dilemma of deciding between a true of false answer.” If testimonial, does that not then make the prosecutor’s task of laying the foundation for the ensuing behavioral/physical evidence more difficult?

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