Do Field Sobriety Tests Violate the Privilege Against Self-Incrimination?

It is well-settled that field sobriety tests do not violate the privilege against self-incrimination under the federal or state constitution. 

The U.S. Const. amend. V provides each individual with the right not to be compelled to be a witness against oneself in any criminal case. There are established safeguards to ensure that this right under U.S. Const. amend. V is not abrogated by the actions of overzealous police during custodial interrogations. The Miranda safeguards are as follows: Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. If, however, he indicates in any manner and at any state of the process that he wishes to consult with an attorney before speaking there can be no questioning. Unless these safeguards are followed, Miranda prohibits prosecutorial use of a defendant's statements.  These are important for your Bucks County criminal lawyer to protect and review with you.  

In that case, Defendant was convicted of driving while under the influence of alcohol pursuant to 75 Pa. Cons. Stat. § 3731(a)(1), and sentenced to a period of imprisonment of not less than 30 days nor more than 23 months. On appeal, the court reversed the judgment and remanded for a new trial, holding that the audio portion of the videotaped reenactment of defendant's field sobriety test violated defendant's right to counsel as provided by U.S. Const. amend. V and U.S. Const. amend. VI. Defendant's verbalizations of asking questions and making comments during the videotaping should have been suppressed because the statements were compelled and in the purview of constitutional protections. The court found that defendant's right to counsel had attached at the time of his arrest. The commonwealth failed to show that defendant's ambiguous assertion of his right to counsel had clearly evidenced that defendant understood and waived his Miranda rights. The court held that the video portion wherein defendant performed the physical acts of the field sobriety test was properly admitted into evidence, but the audio portion violated defendant's right to counsel and should have been suppressed.  Commonwealth v. Waggoner, 373 Pa. Super. 23 (Pa. Super. Ct. 1988).  

The court in Waggoner, continued, 

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the fifth amendment "privilege protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature, and that the withdrawal of blood" and admission of a blood analysis report does not involve the compulsion prohibited by the fifth amendment. Id. at 761, 86 S.Ct. at 1830. Thereafter, in Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1975), our Superior Court used Schmerber as the basis for ruling that Miranda warnings are not required when a defendant is requested to take a field sobriety test. Id., 230 Pa.Superior Ct. at 572, 327 A.2d at 381; see also Commonwealth v. Benson, 280 Pa.Super. 20, 29, 421 A.2d 383, 387 (1980) ("requiring a driver to perform physical tests . . . does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial and therefore no Miranda warnings are required."); accord, State v. Nece, 206 N.J.Super. 118, 501 A.2d 1049 (Law Div. 1985) (fifth amendment does not apply to physical movements involved in sobriety tests because the movements are nontestimonial). The Kloch court stated, "[T]he driver is  the source of 'real or physical evidence,' compulsion of which does not come within the purview of the fifth amendment." 230 Pa.Super. at 572, 327 A.2d at 381 (citation omitted). Since requiring a defendant to perform a field sobriety test does not involve the type of compulsion associated with the fifth amendment, no Miranda warnings were required prior to videotaping Waggoner performing the physical acts involved in the sobriety tests. Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 No. 2570 Philadelphia 1987 (1987). However, in addition to performing the physical acts involved in the sobriety tests, Waggoner asked questions and made comments during the course of the sobriety tests. Furthermore, after the tests, Waggoner answered questions posed by Officer Neri. These verbalizations are within the purview of the fifth amendment. In Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385, (1987), Bruder was stopped by a police officer for driving  through a red light. Upon noticing Bruder's demeanor, the police officer asked him to recite the alphabet and walk in a straight line, heel to toe. The court held that although Bruder's act of walking in a straight line was a physical test not requiring Miranda warnings, his recitation of the alphabet was communicative in nature. Therefore, we held that because the alphabet recitation was elicited before Bruder had received his Miranda warnings, the recitation should have been excluded as evidence.