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State v. Lee11/28/1995
upon the defendant's refusal to take the breathalizer test.
The State filed a timely notice of appeal.
Discussion
The State contends that the officer was not required to give Miranda warnings to defendant prior to requesting that she submit to field sobriety and intoxilyzer tests. Initially, we acknowledge that an accused is always entitled to counsel, if requested, for custodial interrogation. The issue before us is whether the police had an affirmative duty to give Miranda warnings to defendant prior to requesting that she submit to the field sobriety and intoxilyzer tests. We hold that no such duty existed.
I. Statements
Although both parties discuss the propriety of the admission of the pre-arrest statements, that issue is not properly before us. Defendant never requested suppression of her pre-arrest statements; her motion dealt only with her post-arrest statements and test results. Because defendant never objected to the admission of the pre-arrest statements and because the trial court never addressed pre-arrest statements, we do not reach the merits of that issue. See State v. Brita, 158 Ariz. 121, 124, 761 P.2d 1025, 1028 (1988).
It is clear from the trial court's minute entry and from the issues framed for it to address, that the court's ruling pertained only to statements made after defendant's arrest. We agree that any testimonial post-arrest statements should be suppressed.
II. Field Sobriety Tests
"The Self-Incrimination Clause of the Fifth Amendment provides that no 'person . . . shall be compelled in any criminal case to be a witness against himself.'" Pennsylvania v. Muniz, 496 U.S. 582, 588, 110 L. Ed. 2d 528, 110 S. Ct. 2638 (1990) (footnote omitted). "The 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 . . . ." Schmerber v. California, 384 U.S. 757, 761, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). Testimonial or communicative evidence "reveals the subjective knowledge or thought processes of the subject." State v. Theriault, 144 Ariz. 166, 167, 696 P.2d 718, 719 (App. 1984).
However, an accused is not protected from being compelled to produce "real or physical evidence." Schmerber, 384 U.S. at 764. "Both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." 384 at 764.
The United States Supreme Court considered "the 'testimonial' and 'compulsion' components of the privilege against self-incrimination in the context of pretrial questioning." Muniz, 496 U.S. at 590. In Muniz, the defendant was arrested and transported to a booking center where, while videotaped, he was questioned, performed three sobriety tests, and was requested to submit to a breathalyzer test. at 585-86. Only at the end of this process, upon the defendant's refusal to submit to the breathalyzer, was he advised for the first time of his Miranda rights. Id. at 586.
The state court in Muniz refused to suppress evidence of his sobriety tests because the evidence was physical rather than testimonial. Id. at 602. Although the defendant did not challenge that ruling, the United States Supreme Court noted that many other state courts were in accord with that Conclusion. Id. at 603 n.16. The Court's holdings in Muniz included that the defendant's verbal statements
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