We've already discussed how field sobriety tests do not violate the privilege against self-incrimination under the U.S. and Pennsylvania Constitutions.
Videotaping a defendant's ability to walk in a straight line or to perform other physical tests does not invoke constitutional protections because, as is true for field sobriety tests generally, physical evidence is not communicative or testimonial in nature. This is true in a case as a police officer stopped appellant after he had observed him weaving back and forth between highway and berm. The officer smelled the odor of alcohol from appellant's breath. Appellant was unable to perform field sobriety tests adequately and was placed under arrest, taken to a police station, and given a breathalyzer. The breathalyzer malfunctioned so appellant was taken to a hospital where a sample of his blood was drawn which established that his blood alcohol concentration was .34 percent. Appellant was tried without a jury and was found guilty of driving while under the influence of alcohol. Appellant sought review and the court affirmed the judgment of the trial court. The court held that the privilege against self-incrimination found in Pa. Const. art. I, § 9, did not preclude evidence of the results of field sobriety tests administered to citizens believed by the police to be under the influence of alcohol. The court determined that Article I, § 9 protected only testimonial evidence and a field sobriety test was neither testimonial in nature nor did it extract or communicate protected knowledge or thoughts. Commonwealth v. Romesburg, 353 Pa. Super. 215 (Pa. Super. Ct. 1986)
The audio portion of the videotape, however, may run afoul of both Fifth and Sixth Amendment protections if the defendant is compelled by circumstances to utter words that reveal the defendant's thought processes. The big case in this arena is Commonwealth v. Rishel, 399 Pa. Super. 413 (Pa. Super. Ct. 1990). In that case, the Appellee driver was arrested after being involved in an accident where he might have been under the influence of alcohol. At the police station, appellee's processing was videotaped. Appellant commonwealth contended that the third section of the videotape where appellee was fingerprinted and photographed was erroneously suppressed. During this phase appellee made comments to police officers without the officers provocation because appellee had previously invoked his right to counsel. The court reversed and remanded the trial court's order suppressing the third section of appellee's videotaped information. The incriminating nature of the statements were exhibitions of physical characteristics, such as slurred speech, and not testimonial in nature since they were a not product of police interrogation. Therefore, appellee's U.S. Const. amend. V rights were not violated. The court further found that appellee's U.S. Const. amend. VI rights were not violated because counsel was not needed at the videotaping stage of the proceedings since the officer did not attempt to elicit incriminating statements from appellee.
Of course, once a defendant has invoked his or her Fifth or Sixth Amendment privileges, an audiotape of the defendant's responses to questions about how much alcohol he or she had consumed is inadmissible.
In addition to such clearly incriminating statements, it appears that anything said while the field sobriety test is being taken may be inadmissible. This is a point of exploration and potential attack for your Bucks County criminal lawyer or Quakertown DUI lawyer. For example, when a defendant in Bucks County spoke only to get occasional clarifications of the officer's instructions for a field sobriety test, and, as part of the test, counted from 1,001 to 1,030, those verbal utterances were inadmissible. The court declined to accept the Commonwealth's argument that the utterances were offered for the manner in which they were made, as symptomatic of intoxication, and not for the substantive content of the words spoken. Similarly, when the defendant was obscene and uncooperative, and repeatedly commented on the absence of legal representation, the audiotape of those statements was inadmissible.
In Pennsylvania v. Muniz, the U.S. Supreme Court stepped in. The Defendant was convicted of driving under the influence of alcohol. Defendant argued that portions of a videotape should have been suppressed because he had not been given his Miranda warnings. The state appellate court agreed and vacated defendant's conviction, holding that when the physical nature of the tests began to yield testimonial and communicative statements, the protection afforded by Miranda was invoked. The Court found that the Miranda requirement afforded protection against self-incrimination to persons under custodial interrogation. The Court distinguished between testimonial and real or physical evidence when invoking the privilege. The Court held that a field sobriety test or taking a blood sample constituted real or physical evidence; whereas requiring defendant to respond to specific questions was testimonial. The Court distinguished questions from defendant while he was informed about the properties of a breathalyzer test from utterances made in response to personal questions from the police officer, such as the date of defendant's sixth birthday. The Court held that comments made by defendant while submitting to a test should not have been suppressed.