DUI Arrests Based on Nontestimonial Evidence

TESTIMONIAL vs. NONTESTIMONIAL

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In Pennsylvania v. Muniz, 110 S.Ct.2638 (1990), the United States Supreme Court held that slurred speech and the muscle coordination (or lack thereof) required to complete the standardized field sobriety tests amount to nontestimonial information that does not fall within the scope of the Fifth Amendment privilege against self-incrimination and does not invoke the safeguards of Miranda warnings.  They held that standardized field sobriety tests are “real” tests and/or tests of a “physical” variety.  This ruling was consistent with its holding in Schmerber v. California, 384 U.S. 757 (1966), which held that the Fifth Amendment privilege against self-incrimination did not extend to blood results.

However, under some circumstances Miranda will be triggered if the officer asks questions which are sufficiently testimonial as to be used to prove intoxication.  For example, asking a persons name is non-testimonial “routine” question which would not invoke Miranda.  Asking the subject to calculate the date of his sixth birthday, however, would invoke Miranda because it is designed to be used as evidence of intoxication.

This has been a really useful argument in some of my recent motions to suppress and puts the officers on tilt.  We have some very good, very experienced officers who get the subject to talk and talk and talk.  Often, these statements are incredibly incriminating.  If the question is designed to illicit incriminating statements, you should challenge it based on the case law above.  Why would an officer ask your client to count from 13 to 29?  Why else would a trooper ask your client to say the alphabet from “D” to “Q”? If you find yourself in need of an aggressive and credentialed Dayton OVI attorney, contact Charles M. Rowland II today at 937-318-1DUI (318-1384).

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