87 Misc. 2d 186 | New York District Court | 1976
The court, after a hearing, granted two parts of the defendant’s motion to suppress evidence to be presented by the People in the above-entitled action. Both involved statements made by the defendant while in custody without having been given the Miranda warnings. One issue remains to be decided by this court and that is the subject of this decision.
The defendant was stopped by a police officer after he noticed her driving in what appeared to be an erratic manner weaving from side to side. After she came to a stop, the officer testified she had slurred speech and had difficulty getting out of her motor vehicle. When she finally came out of the automobile with the assistance of the officer, she leaned against the car to keep from falling. Certain statements made by the defendant both at the scene and later at the police
Shortly after the decisions of Miranda v Arizona (384 US 436) and Schmerber v California (384 US 757) by the United States Supreme Court, there were two opposing decisions relating to "Performance Tests” in the District Court, Nassau County. The first, People v McLaren (55 Misc 2d 676) decided in 1967 held that the failure to give a defendant the Miranda warnings prior to his taking the performance tests was fatal. The second, People v Suchocki (57 Misc 2d 26) decided in 1968 determined that the Miranda warnings were not applicable to sobriety tests.
Since the two afore-mentioned decisions, there have been many decisions concerning sobriety tests in the appellate courts of jurisdictions outside the State of New York, but this court could find no appellate determination of this question in the State of New York. In Schmerber v California (supra) the court made a distinction between "communications” or "testimony” and "real or physical” evidence. As a result of that decision, many subsequent cases determined that evidence obtained as a result of physical compulsion would not be barred because of the failure to give Miranda warnings. Included, were such items as physical compulsion to stand in a line-up (People v Falco, 67 Misc 2d 520); blood tests (People v Robinson, 27 NY2d 864); the examination of a defendant’s rectum for narcotics (Blackford v United States, 247 F2d 745) and the taking of dental impressions (People v Allah, 84 Misc 2d 500).
In People v McLaren (supra) the court went to some lengths, in citing Schmerber, to distinguish between physical
In the North Carolina Law Review (vol 45, pp 34, 117), the writer reasons that "The old distinction between communicative and noncommunicative incriminations has been preserved for the time being, but it will not stand indefinitely unless supported by basic principle as well as history. * * * The new principles should represent somewhat less amorphous concepts than those now current and they should much more clearly define the limits of an individual’s privacy. When that day comes, necessary chemical testing of hazard-producing drivers will undoubtedly be assured — and on a more satisfactory conceptual base than exists at present. Waiting until that day comes, Schmerber now stands temporary duty at the constitutional dike.”
In Erwin’s "Defense of Drunk Driving Cases” (vol 2, p 32-15, § 32.02) he states, "A physical performance test, however, is clearly distinguishable from a blood test, as described by the court, in that much greater participation by the motorist is required; there is not the same inevitability of results despite the will or effort of the defendant because he is not then in the passive role of one to whom something is done, but rather is actively trying to correctly perform physical tests to prove his innocence or disprove to police their opinion of his guilt.”
In the Hofstra Law Review (vol 3, p 586) the writer, referring to the cases of People v McLaren (55 Misc 2d 676, supra) and People v Suchocki (57 Misc 2d 26, supra) noted that the Suchocki decision equated co-ordination tests with the hand
This court sees merit to the argument that such sobriety tests when performed pursuant to requests made by police officers while the defendant is in custody are in the nature of communications and should have the benefit of Miranda warnings.
In the Cleveland Marshall Law Review (vol 18, pp 575, 585) also referring to sobriety tests, it was stated, "Miranda should not be employed to thwart law enforcement, but it should extend to those who need its protection” and in discussing the possibility of an instance where one might suffer death at the hands of a drunken driver stated, "Death is final, whether premeditated or caused by a drunken driver. Why should the former class be accorded superior rights over the latter?” Such was an argument attacking the need for law enforcement officials to be able to prosecute drunken drivers without being hampered by Miranda warnings.
Although recognizing a distinction between tests performed by a defendant at the request of a police officer where defendant intends to prove his innocence by his controlled actions and those real or physical things taken from a passive defendant, the contents of which are out of his control, this court is constrained to find otherwise in view of the many decisions both in this jurisdiction and in various appellate courts throughout many jurisdictions outside of New York State. In People v Mulack (40 Ill 2d 429) the court found that, the time of visual testing of persons arrested for drunken driving and of breath analysis was not a critical stage of the proceedings and a person arrested was not entitled to the Miranda warnings.
In United States v Wade (388 US 218, 222) the Supreme Court held that, "It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowl
In numerous cases in other jurisdictions which deal directly with sobriety or performance tests, the vast majority of the appellate courts have determined that those tests are outside the protection of Miranda. In Flynt v State (507 P2d 586 [Okla]) the court held that since fingerprints and handwriting examples have been found to be outside the protection of Miranda, having the defendant attempt to walk a straight line is no different. Subsequent to the Schmerber decision, physical sobriety tests have been upheld without Miranda warnings in State v Liefert (247 So2d 18 [Fla]); Whalen v Municipal Ct. (274 Cal App 2d 809); State v Strickland (276 NC 253); People v Kruger (99 Ill App 2d 431); City of Mercer Island v Walker (76 Wn 2d 607); State v Bhattacharya (525 P2d 203 [Ore]); State ex rel. Murphy v City Court of City of Tucson (12 Ariz App 529); Borman v Tschida (171 NW2d 757 [ND]); Heichelbech v State (258 Ind 334); and City of Piqua v Hinger (15 Ohio St 2d 110). If the law of the State of New York is to be different from that of other jurisdictions, it should not be determined in this court.
In the light of the abundance of authority finding the performance or sobriety tests to be without the protection of the Miranda warnings, this court finds that the defendant’s motion with regard to the suppression of the performance test given by defendant is denied and shall not be suppressed.