Karamychev v. Dist. of Columbia5/10/2001
Miranda prior to administering the tests. The trial judge admitted the officer's testimony regarding Muniz' performance on the tests, reasoning that "requiring a driver to perform physical sobriety tests does not violate the privilege against self-incrimination, because the evidence procured of a physical nature rather than testimonial." Com. v. Muniz, 547 A.2d 419, 422 (Pa. Super. 1988) (quoted in Pennsylvania v. Muniz, supra, 496 U.S. at 602-03). The United States Supreme Court did not review this ruling, for Muniz had not challenged it. The Court did state, however, that
his conclusion is in accord with that of many other state courts, which have reasoned that standard sobriety tests measuring reflexes, dexterity, and balance do not require the performance of testimonial acts. See, e.g., Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985); People v. Boudreau, 115 App. Div. 2d 652, 496 N.Y.S.2d 489 (1985); Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982); State v. Badon, 401 So. 2d 1178 (La. 1981); State v. Arsenault, 115 N.H. 109, 336 A.2d 244 (1975). Pennsylvania v. Muniz, supra, 496 U.S. at 603, n.16.
More recently, in People v. Berg, 708 N.E.2d 979 (N.Y. 1999), the New York Court of Appeals reiterated that "Miranda warnings are not required to allow the results of field sobriety tests into evidence." Id. at 980 (citations omitted). The court explained:
Results of field sobriety tests such as the horizontal gaze nystagmus, walk and turn and one-leg stand are not deemed testimonial or communicative because they "do not reveal a person's subjective knowledge or thought processes but, rather, exhibit a person's degree of physical coordination for observation by police officers . . . ." Responses to such tests incriminate an intoxicated suspect not because the tests reveal defendant's thoughts, but because defendant's body's responses [differ] from those of a sober person . . . ." Thus, the results of such tests may be introduced despite the failure of the police to administer Miranda warnings. Id. at 981-82 (citations, internal quotation marks and internal brackets omitted).
Similarly, in State v. Whelan, 728 So. 2d 807, 810 (Fla. Ct. App. 3d Dist. 1999), the court held that
Miranda warnings are not required for roadside tests of a driver's physical coordination. That is so because a test of physical coordination generates a non-testimonial response and is not protected by the Fifth Amendment.
We agree with these authorities, and therefore conclude that Karamychev's performance on the roadside sobriety tests which Officer Williams administered to him was not testimonial in nature, that the privilege against self-incrimination was not implicated, and that, for this reason as well, no Miranda warnings were required.
III.
Karamychev claims that Officer Williams was not qualified to testify as an expert regarding the results of the HGN test which Williams administered to Karamychev. We do not agree.
At trial, Officer Williams explained the purpose of the HGN test and the manner in which he administered it. Turning to his qualifications, Officer Williams testified that about one and one half to two years before the trial, he had received a two-week training course on the subject of drinking and driving. Williams explained that the first week of the course was devoted to field sobriety tests, including HGN, and that a trainee had to pass that part of the course separately before going on to the second week. He testified that it would take an hour to explain the HGN test and how to perform it, "but when we were at the class, we went over that test several times." Officer Williams
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