Karamychev v. District of Columbia, 98-CT-759.

• Court: D.C. Court of Appeals
• Writing for the Court: SCHWELB, Associate
• Citation: Karamychev v. District of Columbia, 772 A.2d 806 (D.C. 2001)
• Decision Date: 10 May 2001
• Docket Number: No. 98-CT-759.,98-CT-759.
• Parties: Filip KARAMYCHEV, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

772 A.2d 806

Filip KARAMYCHEV, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 98-CT-759.

District of Columbia Court of Appeals.

Argued April 12, 2001.

Decided May 10, 2001.

Bruce E. Gardner, appointed by the court, for appellant.

Sidney R. Bixler, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, Lutz Alexander Prager, Assistant Deputy Corporation Counsel, and Rosalyn Calbert Groce, Assistant Corporation Counsel, were on the brief, for appellee.

Before STEADMAN, SCHWELB, and REID, Associate Judges.

SCHWELB, Associate Judge:

Following a bench trial, Filip Karamychev was convicted of driving a motor vehicle while under the influence of intoxicating liquor (DUI), in violation of D.C.Code § 40-716(b) (1998). On appeal, he contends that the results of three roadside sobriety tests administered to him on the scene should have been suppressed on Miranda¹ grounds. Karamychev also claims that the arresting officer should not have been permitted to testify as an expert regarding the administration of one of these tests. Finally, Karamychev asserts that the evidence was insufficient to support his conviction. We affirm.

I.

Officer Ephriam Williams, then a twelve-year veteran of the Metropolitan Police Department, testified that on October 31, 1997, at about 3:15 a.m., he was on patrol in the area of Connecticut Avenue and M Street, N.W., in Washington, D.C. Suddenly, Officer Williams heard the screeching of tires. Turning his attention to the source of the noise, Williams saw a two-door Mitsubishi automobile make a right turn onto M Street, which is one-way westbound at that location. The Mitsubishi then proceeded east on M Street, against the flow of traffic, at what Officer Williams described as a "high rate of speed." Williams was able to stop the vehicle after it had travelled about two blocks in the wrong direction.

The driver of the Mitsubishi turned out to be appellant Filip Karamychev, then eighteen years of age. Karamychev, a native of Russia, testified that he had been in the United States approximately four or five years, "off and on."² When Officer Williams approached the Mitsubishi, he detected "a strong odor of alcohol emanating from the vehicle." Officer Williams ordered Karamychev to step out of the car. According to Williams, Karamychev's eyes "seemed reddish," his speech "was kind of loud," and he "seemed to have a problem maintaining his balance."

Suspecting that Karamychev may have been drinking, Officer Williams proceeded to administer three roadside sobriety tests, including the horizontal gaze nystagmus (HGN) test, the "walk and turn" test, and the "one-leg stand" test.³ These tests are designed to determine whether the motorist's physical coordination has been affected by consumption of intoxicating liquor. According to Officer Williams, Karamychev's performance on each of these tests indicated that he was under the influence of alcohol.

Officer Williams placed Karamychev under arrest and transported him to the Second District station house. Williams testified that, at the police station, Karamychev's breath still smelled of alcohol. Williams read Karamychev the "Implied Consent Form," PD 29, which contains an explanation of the consequences of a suspect's refusal to take certain chemical tests for the presence of alcohol, including the "breathalyzer." According to Williams, Karamychev declined to consent to the tests. Karamychev was then formally charged with DUI.

At his trial, Karamychev took the witness stand in his own defense. He stated that on the evening of October 30, 1997, he and some friends were having a party at a bar near Dupont Circle. Karamychev acknowledged that between 8 p.m. and 9 p.m., he had consumed five or six bottles of beer. He claimed, however, that he had no more to drink thereafter, except that before the group left the bar at about 2:15 a.m., "I took just one sip to make my throat wet."

Karamychev stated that as he was driving his friends home, and apparently travelling west on M Street, one of the passengers told Karamychev that the group's destination, Catholic University, was in the other direction. Karamychev testified that he turned the vehicle around and that, shortly thereafter, he was stopped by the police. Karamychev asserted that, at Officer Williams' direction, he performed roadside sobriety tests; he believed that he had performed well on all of them. Officer Williams apparently thought otherwise, however, and Karamychev was arrested for DUI and taken to the police station. Karamychev denied that he refused to take the breathalyzer test. According to Karamychev, Officer Williams read the informed consent form to him far too rapidly. The officer refused Karamychev's request that he proceed more slowly, and Karamychev did not understand what his rights were. Karamychev admitted that he did not affirmatively agree to have the breathalyzer test administered to him.

The trial judge found Karamychev guilty as charged. The judge credited Officer Williams' testimony, and he expressly disbelieved Karamychev's evidence on two contested points.⁴ This appeal followed.

II.

Karamychev filed a pretrial motion to suppress, on Miranda grounds, his statements to the police, as well as what he characterized as his "non-verbal communications," i.e., his performance of the roadside sobriety tests. The trial judge suppressed Karamychev's oral statements, but he denied the motion with respect to the results of the roadside tests. On appeal, Karamychev claims that his "non-verbal communications" should have been suppressed because, at the time that the sobriety tests were administered to him, the police had not advised him of his constitutional rights.

Karamychev's claim of a Miranda violation fails for two discrete reasons. First, an individual who has been temporarily detained for a traffic stop generally is not considered to be "in custody" for purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In Pennsylvania v. Bruder, 488 U.S. 9, 9-11, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988) (per curiam), the Court summarily held, on the authority of Berkemer, that a motorist's response to a direction that he recite the alphabet, as well as his performance on sobriety tests, were properly received in evidence. The Court indicated that the police officer had no obligation to advise the motorist, before administering the tests, of the motorist's rights pursuant to Miranda. We conclude that Berkemer and Bruder are controlling here, that Karamychev was not in custody, and that Miranda warnings therefore were not required. Second, Karamychev's performance of the roadside sobriety tests was not testimonial, and Miranda, which is based on the Fifth Amendment privilege against self-incrimination, has no application. In Schmerber v. California, 384 U.S. 757, 764-65 (1966), the police directed a physician to take a blood sample from Schmerber's body in order to analyze Schmerber's blood for alcohol content. A report of the chemical analysis of the sample indicated that Schmerber was intoxicated. The report was received in evidence, and Schmerber was convicted of DUI. Schmerber claimed on appeal that the admission of the report compelled him to be a witness against himself, in violation of the Fifth Amendment. The Supreme Court rejected this contention, ruling that "[n]ot even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis," 384 U.S. at 765, 86 S.Ct. 1826, and that Schmerber's "testimonial capacities were in no way implicated." Id.⁵

In Pennsylvania v. Muniz, supra note 3, a police officer directed Inocencio Muniz to perform roadside sobriety tests identical to those utilized by Officer Williams in the present case. The officer did not advise Muniz of his rights under Miranda prior to administering the tests. The trial judge admitted the officer's testimony regarding Muniz' performance on the tests, reasoning that "requiring a driver to perform physical sobriety tests does not violate the privilege against self-incrimination, because the evidence procured [was] of a physical nature rather than testimonial." Com. v. Muniz, 377 Pa.Super. 382, 547 A.2d 419, 422 (1988) (quoted in Pennsylvania v. Muniz, supra, 496 U.S. at 602-03, 110 S.Ct. 2638). The United States Supreme Court did not review this ruling, for Muniz had not challenged it. The Court did state, however, that

[t]his conclusion is in accord with that of many other state courts, which have reasoned that standard sobriety tests measuring reflexes, dexterity, and balance do not require the performance of testimonial acts. See, e.g., Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985); People v. Boudreau, 115 A.D.2d 652, 496 N.Y.S.2d 489 (1985); Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982); State v. Badon, 401 So.2d 1178 (La.1981); State v. Arsenault, 115 N.H. 109, 336 A.2d 244 (1975).

Pennsylvania v. Muniz, supra, 496 U.S. at 603, n. 16, 110 S.Ct. 2638.

More recently, in People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906, 708 N.E.2d 979 (1999), the New York Court of Appeals reiterated that "Miranda warnings are not required to allow the results of field sobriety tests into evidence." Id. at 980 (citations omitted). The court explained:

Results of field sobriety tests such as the horizontal gaze nystagmus, walk and turn and one-leg stand are not deemed testimonial or communicative because they "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. . . ." Responses to such tests incriminate an intoxicated suspect not because the tests reveal defendant's thoughts, but because defendant's body's responses [differ] from those of a sober person.... Thus, the results of

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