Summary
In People v Hager (69 N.Y.2d 141), it was held by the Court of Appeals that performance tests and breathalyzer tests are not testimonial or communicative in nature in that they do not require revelation of a person's subjective knowledge or thought processes and, therefore, Fifth Amendment rights are not involved and Miranda warnings were not required to be given.
Summary of this case from People v. NigohosianOpinion
Decided February 12, 1987
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Raymond Harrington, J.
Anthony V. Barbiero for appellant. Denis Dillon, District Attorney (Douglas Noll of counsel), for respondent.
Defendant has been convicted of a violation of section 600 (2) (a) and (b) of the Vehicle and Traffic law, leaving the scene of an accident, and sentenced to a term of probation.
The charges arose at about 12:40 A.M. on May 9, 1983, when Catherine Kuehhas was struck by a car operated by defendant. According to eyewitness' reports, defendant stopped at the accident scene, but drove away without revealing his identity or exhibiting his license and insurance identification card. Defendant was immediately pursued and caught by the police and after he was caught the investigating officer smelled alcohol on his breath. The police then transported defendant to Central Testing Headquarters where he consented to execute various physical coordination tests, including balancing tests, walking a straight line and holding his arms extended and then touching the tip of his nose with his index fingers. He also consented to a breathalyzer test. Defendant was not given Miranda warnings prior to the administration of the physical coordination tests and he therefore contends that evidence of the results must be suppressed because performance of them violated his privilege against self-incrimination (US Const 5th and 14th Amends; NY Const, art I, § 6).
The privilege against self-incrimination bars the State from compelling a person to provide "evidence of a testimonial or communicative nature" (Schmerber v California, 384 U.S. 757, 761). Evidence is "testimonial or communicative" when it reveals a person's subjective knowledge or thought processes (see, State v Theriault, 144 Ariz. 166, 696 P.2d 718; Commonwealth v Brennan, 386 Mass. 772, 438 N.E.2d 60). Physical performance tests do not reveal a person's subjective knowledge or thought processes but, rather, exhibit a person's degree of physical coordination for observation by police officers. The defendant's responses to those tests in this case indicated he had imbibed alcohol, not because the tests revealed defendant's thoughts, but because his body's responses differed from those of a sober person (see People v Boudreau, 115 A.D.2d 652, 654). We conclude, therefore, that Miranda warnings were not required to be given to defendant prior to the administration of the performance tests.
Insofar as defendant's other contentions are preserved for our review, they do not require reversal.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in Per Curiam opinion.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed.