664 P.2d 1168 (Utah 1983), 18587, Salt Lake City v. Carner

Docket Nº:18587.
Citation:664 P.2d 1168
Opinion Judge:HOWE, Justice:
Party Name:SALT LAKE CITY, Plaintiff and Respondent, v. Steven R. CARNER, Defendant and Appellant.
Attorney:Ronald J. Yengich, Earl G. Xaiz, Salt Lake City, for defendant and appellant. Roger F. Cutler, City Atty., Salt Lake City, for plaintiff and respondent.
Case Date:April 29, 1983
Court:Supreme Court of Utah

Page 1168

664 P.2d 1168 (Utah 1983)

SALT LAKE CITY, Plaintiff and Respondent,


Steven R. CARNER, Defendant and Appellant.

No. 18587.

Supreme Court of Utah.

April 29, 1983

Page 1169

Ronald J. Yengich, Earl G. Xaiz, Salt Lake City, for defendant and appellant.

Roger F. Cutler, City Atty., Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

Defendant was charged with driving under the influence of alcohol and improper lane change, both in violation of the Revised Ordinances of Salt Lake City. A circuit court judge dismissed the charges on the ground that the defendant had taken certain field sobriety tests in violation of his right against self-incrimination afforded by Article I, Section 12 of the Utah Constitution. On appeal to the district court, a district court judge in a memorandum decision, reversed the ruling of the circuit court and remanded the case for further proceedings. Defendant appeals to this court seeking the reversal of the district court's decision and a reinstatement of the circuit court's ruling.

The facts are undisputed. In the early morning hours of July 18, 1980 a Salt Lake City police officer saw the defendant driving a red Datsun in the area of Tenth West and North Temple. He observed defendant's car cross the center line of the street three separate times while travelling approximately one block. After defendant's car made a sweeping left turn, the officer pulled him over. Upon approaching the car, the officer smelled an odor of alcohol coming from the car's interior. In talking to the defendant, the officer noticed that his speech was slurred. The officer asked the defendant to get out of the car and requested that he perform some field sobriety tests. He verbally agreed to the tests. Also, when instructed on how to perform the heel-to-toe test, the finger count test, the hand slap test, and the balance test he attempted to comply with each separate request. However, he was unable to effectively perform any of those tests. Based upon his observations of the driving pattern, field sobriety tests, the odor, and defendant's speech, the officer formed the opinion that the defendant was intoxicated to the point that it impaired his driving. He arrested defendant, advised him of the implied consent law, and asked him if he would take a breathalyzer test. The defendant agreed and the test was administered by another officer who observed the defendant and who also formed the opinion that he was under the influence of alcohol.

At trial, the breathalyzer test result of 0.14% blood alcohol was admitted into evidence without objection. (This result was .06% above the .08% which is the statutory presumptive threshold for driving under the influence). However, defense counsel moved that the results of defendant's performance of the field sobriety tests be suppressed since he was not given a Miranda warning in violation of this state's constitutional guarantee against self-incrimination. Apparently under the fruit of the poisonous tree doctrine, but without comment, the circuit court granted the motion and dismissed all charges against defendant.

Article 1, Section 12 of the Utah Constitution states:

The accused shall not be compelled to give evidence against himself ...

Defendant contends that performing field sobriety tests constituted giving evidence against himself, as defined in Hansen v. Owens, Utah, 619 P.2d 315 (1980). 1 He also

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contends that at the time he was asked to perform the tests he was in custody, or otherwise significantly deprived of his freedom, and thereby "compelled" to give evidence against himself. The first contention is premised upon the second since there is no violation of constitutional rights if one voluntarily gives evidence against oneself. We shall therefore turn to a consideration of defendant's second contention.

The basis for defendant's contention that he was "compelled" to give evidence against himself is that he agreed to perform and did perform the field sobriety tests under "some substantial physical or psychological control or restraint." In State v. Martinez, Utah, 595 P.2d 897, 899 (1979), we held such restraint requires that a person be advised of his Miranda rights. 2 Since he was not so advised, defendant argues that he did not knowingly and voluntarily waive those rights. The implication is that he did not voluntarily perform the field sobriety tests but was compelled to do so.

The dictum upon which defendant relies in State v. Martinez, supra, was written in the context of an affirmance of a conviction for possession of a controlled substance where the accused unsuccessfully contended that his Miranda rights should have been repeated within one-half hour of their first explication even though the sequence of events was continuous. The facts of that case do not offer a guide for what is "substantial physical or psychological control." Similarly distinguishable from the case before us is the language "detained in any significant way" found in State v. Ruggeri, 19 Utah 2d 216, 429 P.2d 969 (1967), which was uttered in the...

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