McAvoy v. State

• Decision Date: 01 September 1986
• Docket Number: No. 841,841
• Citation: 70 Md.App. 661,523 A.2d 618
• Parties: Joseph Hooper McAVOY v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

Page 661

70 Md.App. 661

523 A.2d 618

Joseph Hooper McAVOY v. STATE of Maryland.

No. 841 Sept. Term, 1986.

Court of Special Appeals of Maryland.

April 9, 1987.

Thomas A. Garland, Ellicott City, for appellant.

Ann E. Singleton, Asst. Atty. Gen., Stephen H. Sachs, Atty. Gen., Baltimore, Thomas E. Hickman, State's Atty., for Carroll County and Edward M. Ulsch, Deputy State's Atty., for Carroll County, on brief, Westminster, for appellee.

Submitted before BISHOP, ROSALYN B. BELL and KARWACKI, JJ.

KARWACKI, Judge.

Joseph McAvoy, the appellant, was convicted in the Circuit Court for Carroll County of driving while under the influence of alcohol in violation of Md.Code (1977, 1984 Repl.Vol.), § 21-902(b) of the Transportation Article. He was sentenced to 60 days imprisonment and fined $250. The court suspended the prison sentence and placed the appellant on supervised probation for three years. In this appeal he contends that Judge Robert H. Heller, Jr., should have granted his pretrial motion to suppress the results of a breathalyzer test and evidence of the appellant's inability to perform certain field sobriety tests because those tests were administered without compliance with the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At the hearing on the motion to suppress, the following testimony was presented concerning the events leading up to the appellant's arrest on February 28, 1984. Trooper M.A. DiPietro of the Maryland State Police testified that at approximately 8:00 p.m. that evening, he observed the appellant's automobile make a "right turn on red" from Green Street into the northbound lane of Route 32 where a sign was posted prohibiting such a maneuver. Trooper DiPietro, who had been proceeding south on Route 32, turned his police cruiser around and followed the appellant's car through the streets of Westminster as the appellant drove from Route 32 to the unlit parking lot of the VFW clubhouse located on Poole Road. Trooper DiPietro alighted from his vehicle, approached the appellant, and informed him that he had made an illegal right turn. The appellant maintained, however, that there was no sign prohibiting a right turn on a red light at the Green Street-Route 32 intersection. Trooper DiPietro then suggested that they both drive back to the scene to resolve their conflicting observations. The appellant agreed. Upon their arrival at the Green Street-Route 32 intersection, Trooper DiPietro and the appellant parked their vehicles in a well lighted parking lot near the intersection and walked to a place near the roadway from which the "No Turn on Red" sign was clearly visible. At this point the trooper noticed that the appellant "had watery eyes and a flushed face and his eyes were bloodshot, and ... that he had an alcoholic beverage odor on his breath." Trooper DiPietro's testimony continued:

Q Now when you made those observations, what happened then?

A I asked him if he'd recite the alphabet after I ascertained that he did know it.

Q All right.

A He made four attempts to do so and he could never get past P.

Q All right. Did you ask him to do any other field tests?

A I demonstrated the finger-to-nose test that I use and he made, I think it was, three attempts and even after I corrected him on the three attempts as to how I wanted it done, which is with the feet together and the head tilted back and the arms brought from the side to the front and then straight back to the nose, he still just brought his hands up from his waist to his face. Even when I would correct him right in the middle of it he would still do it that way.

Q All right. Did you have any other tests other than the alphabet test and the finger-to-the-nose test?

A No, he said he had ankle problems so I didn't attempt any balance tests.

The appellant was then placed under arrest at 8:30 p.m. for driving while intoxicated. After the DR15 form ¹ was read to the appellant by Trooper DiPietro, the appellant agreed to take a breathalyzer test. He was transported to the State Police barracks in Westminster, and a breathalyzer test was administered to the appellant at 9:09 p.m., resulting in a finding of .20 percent ethyl alcohol by weight in his blood. ² Miranda rights were read to the appellant at 9:35 p.m., and after the appellant declined to make a statement, he was released. At no time during his detention at the scene or after his arrest had the appellant requested the right to see or communicate with a lawyer.

The appellant's testimony at the hearing on the motion to suppress contradicted several aspects of Trooper DiPietro's testimony. The appellant claimed that he was ordered, not invited, back to the Green Street-Route 32 intersection to view the "No Turn on Red" sign, that he was not asked to perform an "alphabet test" or a "finger-to-nose test," and that he was told that he would have to take the breathalyzer test and therefore never consented to the test. The appellant also maintained that he was not read the Advice of Rights form prior to being given the breathalyzer test. All of these conflicts were resolved in favor of the testimony of Trooper DiPietro by the hearing judge when denying the motion to suppress.

In Miranda v. Arizona, the Supreme Court held that in criminal trials in the federal and state courts: "... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444, 84 S.Ct. at 1612, 16 L.Ed.2d at 706-07. The procedural safeguards which the Court mandated to protect the Fifth Amendment ³ privilege that "[n]o person ... shall be compelled in any criminal case to be a witness against himself" are the now well-known warnings which must be given to any criminal suspect before any custodial interrogation.

The progeny of Miranda has recognized that these warnings have no constitutional basis, but that they are prophylactic rules created by judicial decision to safeguard the privilege against self-incrimination. Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2363-64, 41 L.Ed.2d 182, 192-93 (1974); Whitfield v. State, 287 Md. 124, 131, 411 A.2d 417, cert. dismissed, 446 U.S. 993, 100 S.Ct. 2980, 64 L.Ed.2d 850 (1980) ⁴; State v. Kidd, 281 Md. 32, 36-37, 375 A.2d 1105, cert. denied, 434 U.S. 1002, 98 S.Ct. 646, 54 L.Ed.2d 498 (1977). Thus, preliminary to any decision to exclude evidence because it was gathered from the criminal suspect who was not advised of his Miranda rights is a determination of whether that evidence constitutes a statement stemming from custodial interrogation.

With these principles in mind, we turn initially to the appellant's attempt to suppress the results of the breathalyzer test administered to him at the Westminster barracks of the State Police. It is well established that the Fifth Amendment privilege only protects an accused from being compelled to provide evidence of a testimonial or communicative nature. It is inapplicable where, as here, the suspect provides real or physical evidence under compulsion. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830-31, 16 L.Ed.2d 908, 914 (1966); State v. Moon, 291 Md. 463, 473-74, 436 A.2d 420 (1981). In Schmerber the Court rejected a claim by a convicted drunken driver that the results of a test determining the percentage of alcohol in his blood, administered after his arrest, should not have been admitted at his trial because the blood had been drawn from him over his objection based upon the privilege against self-incrimination. Justice Brennan, speaking for the Court, reasoned:

It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. Boyd v. United States, 116 U.S. 616 [, 6 S.Ct. 524, 29 L.Ed. 746.] On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it. (Footnotes omitted.)

384 U.S. at 763-64, 86 S.Ct. at 1832, 16 L.Ed.2d at 916. Whether the accused is a donor of blood or breath for testing to determine the percentage of ethyl alcohol in his or her blood, no testimony or communication is compelled within the ambit of the protection afforded by the Fifth Amendment. An overwhelming number of the courts which have addressed this issue have so concluded. See, e.g., People v. Mulack, 40 Ill.2d 429, 240 N.E.2d 633 (1968); Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60, 63-64 (1982); State v. Macuk, 57 N.J. 1, 268 A.2d 1 (1970); People v. Gielarowski, 58 Misc.2d 832, 296 N.Y.S.2d 878 (N.Y.Dist.Ct.1968); Heer v. Department of Motor Vehicles, 252 Or. 455, 450 P.2d 533 (1969); State v. Bunders, 68 Wis.2d 129, 227 N.W.2d 727 (1975). We agree and therefore hold that an individual who is arrested for driving while intoxicated or while under the influence of alcohol is not entitled to the warnings mandated by Miranda v. Arizona prior to being given the option of submitting to the blood-alcohol tests authorized by Md.Code, supra, § 16-205.1 of the Transportation Article.

We also conclude that Trooper DiPietro's testimony describing the appellant's performance of certain field sobriety tests was properly admitted in evidence at his trial notwithstanding the failure of the trooper to...