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State v. Lee11/28/1995
that were both testimonial and in response to custodial interrogation should have been suppressed. 496 at 590. However, the Court found "that any slurring of speech and other evidence of lack of muscular coordination revealed by Muniz's responses to Officer Hosterman's direct questions constituted nontestimonial components of those responses." 496 at 592.
This Court has previously held that field sobriety tests do not violate the Fifth Amendment because they are not testimonial or communicative. Theriault, 144 Ariz. at 167, 696 P.2d at 719. We realize that in Theriault the field sobriety tests were administered prior to the defendant's arrest. However, the nontestimonial nature of a test does not change merely because a defendant is arrested. Thus, we conclude that field sobriety tests are nontestimonial in nature and therefore Miranda warnings are not required prior to administering the tests.
III. Intoxilyzer
Our analysis of field sobriety tests is equally applicable to the intoxilyzer test. "Miranda is not applicable to evidence obtained from a breathalyzer test since Miranda is 'bottomed on the privilege against self-incrimination and bars the use of communications by or testimonial utterances of a person unless and until the four-fold warning has been given and applied. A breathalyzer test is unrelated to a communication by the subject.'" Campbell v. Superior Court, 106 Ariz. 542, 552 n.8, 479 P.2d 685, 695 n.8 (1971) (quoting State v. Kenderski, 99 N.J. Super. 224, 239 A.2d 249, 251 (N.J. Super. Ct. App. Div. 1968)).
In State v. Juarez, 161 Ariz. 76, 80, 775 P.2d 1140, 1144 (1989), our supreme court found that Campbell was not applicable to a criminal matter. However, Juarez did not address the court's prior determination that a breathalyzer test was nontestimonial. We do not believe that the civil or criminal nature of a proceeding affects the testimonial nature of evidence.
Moreover, "refusal to take a chemical breath test is not testimonial evidence but physical evidence only and therefore admissible at a criminal trial for DUI." State v. Superior Ct. (Ahrens), 154 Ariz. 574, 578, 744 P.2d 675, 679 (1987); see also State v. Thornton, 172 Ariz. 449, 452, 837 P.2d 1184, 1187 (App. 1992). "Because the evidence is non-testimonial, no statement in connection with the refusal being in issue, no warning, such as required by [Miranda ] is necessary." State v. Superior Ct. (Gilliland), 149 Ariz. 601, 603, 721 P.2d 149, 151 (App. 1986); see also Muniz, 496 U.S. at 604-05. In Muniz, the Court found that the absence of Miranda warnings did not require suppression of statements because the officer limited her role to providing relevant information about the test and questioned the defendant only regarding whether he understood her instructions and wished to take the test. 496 U.S. at 605. The Court noted that these inquiries were "'attendant to' the legitimate police procedure and were not likely to be perceived as calling for any incriminating response." Id. (quoting South Dakota v. Neville, 459 U.S. 553, 564 n.15, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983)) (citation omitted).
Accordingly, we hold that Miranda warnings were not required prior to requesting that defendant submit to the intoxilyzer test. Further, evidence of defendant's refusal to submit to the intoxilyzer test is admissible.
IV. Right to Counsel
Defendant argues that immediately upon being arrested, defen
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