Miranda and Field Sobriety Tests

Normally, field sobriety tests are administered before an arrest is made, as part of an officer’s investigation into a possible DWI. In that case, it’s clear that the officer need not read the driver his Miranda rights before administering the tests. The driver isn’t in custody — he’s just the subject of a traffic stop — and Miranda warnings are required only for custodial interrogation. Sometimes, however, an officer will administer field sobriety tests after arresting the driver. In such a case, must the officer give the Miranda warnings before administering the tests?

I was recently asked that very question. The court of appeals has answered in the negative, concluding that “the physical dexterity tests are not evidence of a testimonial or communicative nature . . . and are not within the scope of the Miranda decision.” State v. Flannery, 31 N.C. App. 617 (1976). Although Flannery appears to be the only published appellate case on point in North Carolina, out of state cases uniformly agree. See, e.g., Campbell v. State, 325 S.W.3d 223 (Tex. Ct. App. Ft. Worth 2010) (“[S]obriety tests yield physical evidence of a suspect’s mental and physical faculties, and thus the results are not testimonial evidence that implicates Miranda.”); Commonwealth v. Cameron, 689 N.E.2d 1365 (Mass. App. Ct. 1998) (holding that “[b]ecause field sobriety tests have been held not to elicit testimonial . . . evidence, they do not trigger the protections” of Miranda).

It probably follows from the foregoing, but our courts have also held that Miranda warnings need not be given before administering a breathalyzer. State v. White, 84 N.C. App. 111 (1987).