GREANEY, J. In Commonwealth v. D'Agostino, 38 Mass. App. Ct. 206 (1995), the Appeals Court reversed the defendant's conviction for operating a motor vehicle while under the influence of intoxicating liquor, in violation of G.L.c. 90, § 24 (1) ( a) (1) (1994 ed). The Appeals Court determined that the rule announced in Commonwealth v. Zevitas, 418 Mass. 677 (1994), in which it was concluded that a jury instruction mandated by G.L.c. 90, § 24 (1) ( e) (1994 ed.), had the effect of unconstitutionally compelling an accused to furnish evidence against himself or herself, id. at 683, should be applied retroactively to the defendant's case.

He therefore argues that any statement he made and any physical evidence obtained should be suppressed because they were obtained in violation ofMiranda v. Arizona, 384 U.S. 436 (1966). However, even the defendant's analysis makes clear that there was no custodial interrogation here. SeeCommonwealth v. D'Agostino, 38 Mass. App. Ct. 206, 208, S.C., 421 Mass. 281 (1995). Having observed the traffic violations, the police had a reasonable basis for stopping the defendant.

Here, Farrell's actions exceeded the latter limitation. Relying on Commonwealth v. D'Agostino, 38 Mass. App. Ct. 206, 646 N.E.2d 767, S.C., 421 Mass. 281, 657 N.E.2d 217 (1995), the Commonwealth argues that asking a driver where he is coming from is always permissible in a routine traffic stop. But there the court stated only that such questioning need not be preceded by Miranda warnings.

The Appeals Court has consistently applied the holdings of these two Federal decisions in circumstances similar to this case, and has rejected arguments that Miranda warnings were necessary on the ground that the detained motorist was not in custody. See Commonwealth v. D'Agostino, 38 Mass. App. Ct. 206, 208, S. C., 421 Mass. 281 (1995); Commonwealth v. Smith, 35 Mass. App. Ct. 655, 657-658 (1993); Commonwealth v. Ayre, 31 Mass. App. Ct. 17, 20 (1991); Commonwealth v. McNelley, 28 Mass. App. Ct. 985, 986 (1990). There is nothing in the facts found by the judge that takes the case outside of a routine stop and investigation for suspected drunk driving, with the result that the Berkemer and Bruder decisions apply here.

April 25, 1995Further appellate review granted: Reported below: 38 Mass. App. Ct. 206 (1995).

The existence of compulsion due to the choice a motorist has whether to perform field sobriety tests is separate and apart from the issue of custody for purposes of the Miranda doctrine. The stop and brief detention of a motorist who is suspected of operating a motor vehicle while under the influence of alcohol is not custody and thus there is no need to advise such a person of his Miranda rights before police questioning. See Commonwealth v. D'Agostino, 38 Mass.App.Ct. 206, 208, 646 N.E.2d 767,S.C.,421 Mass. 281, 657 N.E.2d 217 (1995). Such a person may be asked to perform field sobriety tests without first waiving his Miranda rights.

See Commonwealth v. Sauer, 50 Mass. App. Ct. 299, 301 (2000). See also Commonwealth v. McNelley, 28 Mass. App. Ct. 985, 986 (1990); Commonwealth v. D'Agostino, 38 Mass. App. Ct. 206, 208, S.C., 421 Mass. 281, 281 n. 1 (1995). Moreover, though the record is not sufficiently developed to allow us to determine the question with certainty (due in part to the prosecutor's successful objection to the defendant's efforts to elicit testimony bearing on whether she was in custody at the time of her inculpatory statements), we are satisfied that the statements were harmless even if we were to assume they should have been suppressed.

Thus, in the peculiar circumstances of this case, we are constrained to reverse and order a new trial. See, e.g., Commonwealth v. D'Agostino, 38 Mass. App. Ct. 206, 210, S.C., 421 Mass. 281, 287-288 (1995). See recent trilogy, Commonwealth v. D'Agostino, 421 Mass. 281 (1995), Commonwealth v. Adams, 421 Mass. 289 (1995), and Commonwealth v. Koney, 421 Mass. 295 (1995).

Generally, where the new rule is based on a constitutional right, it will be applied retroactively "if (1) a case is on direct appeal . . . when the new rule is announced, and (2) the issue was preserved at trial." Commonwealth v. D'Agostino, 38 Mass.App.Ct. 206, 209 (1995), citing Commonwealth v. Figueroa, 413 Mass. 193, 202 (1992), quoting from Commonwealth v. Libran, 405 Mass. 634, 645 (1989). By contrast, "[w]hen announcing a new common-law rule, a new interpretation of a State statute, or a new rule in the exercise of our superintendence power, there is no constitutional requirement that the new rule or new interpretation be applied retroactively, and . . . [the Court is] therefore free to determine whether it should be applied only prospectively."