The defendant was stopped by a police officer on suspicion of driving while intoxicated. He performed poorly on a series of field sobriety tests and was placed under arrest. The officer took the defendant to a booking center. Officers there, following the usual practice with drunk-driving suspects, videotaped the booking proceedings. The defendant, who was informed of the videotaping, responded to questions concerning his name, address, height, weight, eye color, date of birth, and current age, stumbling over his address and age. In response to a question about whether he knew the date of his sixth birthday, the defendant stated, “No, I don’t.” He did poorly in repeated sobriety tests. The defendant was then advised of his Miranda rights for the first time, signed a statement waiving those rights, and admitted under questioning that he had been driving while intoxicated.
Whether the officers interrogated the defendant before providing him with his Miranda warnings?
Yes. The defendant’s Fifth Amendment rights were violated by the admission of that part of the videotape in which the suspect responded to the question as to the date of his sixth birthday. However, the admission of the portions of the videotape in which the suspect performed the sobriety tests and responded to booking questions was not interrogation.
The privilege against self-incrimination protects an “accused from being compelled to testify against himself, or otherwise, provide the State with evidence of a testimonial or communicative nature,” but not from being compelled by the State to produce “real or physical evidence.” Schmerber v. California. To be testimonial, the communication must, “explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States.
The defendant’s answers to direct questions are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. Any slurring of speech and other evidence of lack of muscular coordination revealed by the defendant’s responses constitute non-testimonial aspects of those responses. The defendant’s incriminating responses made during the sobriety tests were not the result of interrogation as the officer’s dialogue with him concerning the tests consisted of carefully scripted instructions as to how the tests were to be performed. Therefore, they were not “words or actions” constituting custodial interrogation.
However, the defendant’s response to the sixth birthday question was incriminating not just because of his delivery, but also because the content of his answer supported an inference that his mental state was confused. His response was testimonial because he was required to communicate an express or implied assertion of fact or belief and, thus, was confronted with the “trilemma” of truth, falsity, or silence, the historical abuse against which the privilege against self-incrimination was aimed.
496 U.S. 582, 110 S. Ct. 2638 (1990)