Miranda and Field Sobriety Tests

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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).

5 comments on “Miranda and Field Sobriety Tests

  1. I think a warning taylored to a DWI traffic stop should be required before the in-custody field sobriety tests. Something such as:

    “You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to refuse to perform these field sobriety tests. If you give up this right, the results may be introduced as evidence against you in a future trial.”

    My advice to clients is to always refuse the FSTs. They are designed to produce failures. A significant proportion of the driving public could fail them when stone cold sober at 11 am on Sunday morning just before they go into church. Elderly drivers particularly do not always have the sense of balance required to pass.

    Plus the pass/fail decision is a personal judgement by the officer. No matter how well you do on them, if a uniformed officer testifies that in his opinion you were not perfect which indicats impairment, the jury will believe him.

  2. I agree with the post above. I also think the Appellate Court is a little fast and lose in baldly concluding that FSTs are not “testimonial”.

  3. If FST’s boil down to compulsory actions, they are by their nature designed to communicate..something otherwise why require that they be performed?

    At what point is an action communicative? A smile? Frown? A fist waived in the air, all designed to communicate a state of mind or being, and yet doing the Traffic Stop Ballet somehow is not meant to communicate a state of being?

  4. In the state of North Carolina…..is a field sobrity test required to be given when charged with a DUI. and also an open container charge but the container was covered by a koozie so officer did not know what was in it, he never checked it or disposed of it. It was still in the vehicle when we retrieved it the next day.

  5. I was taken directly from my car to the passenger seat of the Patrolmen’s car and he used the handheld breathalyzer and didn’t produce the results he wanted. An hour later I tested on the console unit at the jail and registered (.13). I was never read miranda rights or informed that I was under arrest at anytime. Surely being told to sit in the passenger side of the Patrolmen’s car at that point in time must be in custody. Imagine what would have happened had I opened the door and walked away. I was pulled over at 11:10 p.m. Exactly 1 hour later I tested on the breathalyzer console in the jail exactly one hour later I was released on my own recognizance with no bail.

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