State v. Maze
Decision Date | 14 February 1992 |
Docket Number | No. 66286,66286 |
Citation | 825 P.2d 1169,16 Kan.App.2d 527 |
Parties | STATE of Kansas, Appellee, v. Duane L. MAZE, Appellant. |
Court | Kansas Court of Appeals |
Syllabus by the Court
1. Recitation of the alphabet by a suspect in a driving while under the influence of alcohol or drugs investigation is not testimonial in that it does not require a suspect to communicate any personal beliefs or knowledge of facts. Such recitation does not violate a suspect's Fifth Amendment right against incrimination and does not require a Miranda warning.
2. Readings obtained from a partial alcohol concentration test on a breath testing machine are statutorily admissible in evidence. K.S.A. 8-1013(f)(2) and 8-1006(a).
3. Suspension of a driver's license for refusal to take a blood alcohol test is civil or administrative in nature, and a subsequent prosecution for driving while under the influence in which the test is admitted in evidence does not amount to double jeopardy in violation of the Fifth Amendment.
Patricia H. Jenkins, of Alexander, Floodman, Casey & Jenkins, Chtd., Wichita, for appellant.
Jeffrey E. Goering, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before BRISCOE, C.J., and ELLIOTT and LARSON, JJ.
Duane L. Maze appeals his convictions for operating a vehicle while under the influence of alcohol, running a stop sign, failure to maintain a single lane of traffic, failure to have operable headlights, and failure to have headlights lit when required.
The factual background to this case is unremarkable. Maze had been to a party and had consumed some alcoholic beverages. He left the party late at night in his employer's vehicle. The alternator on the vehicle failed and Maze was driving the vehicle without the lights on when he was stopped for traffic infractions.
Maze contends the trial court erred in admitting into evidence the results of the field sobriety tests and a deficient breathalyzer test. Maze further argues that the admission of the breathalyzer test results placed him in double jeopardy and that, under the circumstances, he did not violate the traffic laws.
It was not reversible error for the trial court to admit the results of the field sobriety tests.
The crux of Maze's first argument is that Sedgwick County Deputy W.R. Edwards was required to immediately give him his Miranda warnings because Edwards had no intention of allowing Maze to leave the place where he had been stopped. Edwards' testimony specifically denied that Maze was in custody or that he had made any decision to arrest Maze for driving while under the influence of alcohol and the other traffic offenses at that time.
Edwards detected a strong odor of alcohol from Maze and noted that he walked in a stumbling, staggering fashion, and had difficulty maintaining his balance. Maze performed field sobriety tests consisting of the horizontal nystagmus gaze test, a one-legged stand test, a heel-to-toe test, and the recitation of the alphabet test. All of the tests were performed incompletely, inadequately, and in a manner indicating Maze was noticeably impaired.
At this point, Maze was advised that he was being placed in custody for possible driving while under the influence of alcohol plus the traffic violations, and he was given his Miranda warning.
Maze's argument that the foregoing procedure violates his rights against self-incrimination under the Fifth Amendment because all the test results were "testimonial evidence" is without merit.
In State v. Faidley, 202 Kan. 517, 450 P.2d 20 (1969), the issue was whether defendant's Fifth Amendment rights were violated by the admission at trial of a heel-to-toe balance test because a Miranda warning had not been given prior to defendant's taking the test. The Kansas Supreme Court stated:
"While it has been held that the rule of Miranda begins to operate when an individual is taken into custody or is otherwise deprived of his freedom of action in any significant way [citation omitted], the issue of this appeal hinges upon the scope of the privilege against self-incrimination as contained in Section 10 of the [Kansas] Bill of Rights and the Fifth Amendment." 202 Kan. at 520, 450 P.2d 20.
The court determined that
202 Kan. at 521-22, 450 P.2d 20.
In State v. Jones, 3 Kan.App.2d 553, 555-56, 598 P.2d 192 (1979), our court held that: "[C]oordination tests performed on the highway after being stopped on suspicion of driving while under the influence of intoxicating liquor do not violate the defendant's privilege against self-incrimination."
There is merit, however, in Maze's contention that his inability to recite the alphabet, which was evidence used against him at the time of the trial, is testimonial in nature and protected by his Fifth Amendment privilege against compulsory incrimination. In Pennsylvania v. Muniz, 496 U.S. 582, ----, 110 S.Ct. 2638, 2652, 110 L.Ed.2d 528, 554-55 (1990), a request made to Muniz to state the date of his sixth birthday was deemed testimonial and suppressed because it was given prior to a Miranda warning.
Although four Justices were of the view that the seven questions at issue constituted custodial interrogation regardless of the fact they were not intended to elicit information for investigative purposes, the Muniz Court determined Muniz's answers to questions regarding his name, address, height, weight, eye color, date of birth, and current age were admissible because "the questions [fell] within a 'routine booking question' exception" to Miranda. 496 U.S. at ----, 110 S.Ct. at 2651, 110 L.Ed.2d at 552. Chief Justice Rehnquist, joined by Justices White, Blackmun, and Stevens, concluded that Muniz's response to the "booking" questions were not testimonial and, therefore, did not warrant application of the Fifth Amendment privilege. 496 U.S. at ----, 110 S.Ct. at 2653, 110 L.Ed.2d at 555.
The question regarding the date of Muniz's sixth birthday was deemed testimonial because it explicitly or implicitly related to the assertion of a fact or belief where the suspect confronts the "trilemma" of truth, falsity or silence. 496 U.S. at ----, 110 S.Ct. at 2648, 110 L.Ed.2d at 549.
496 U.S. at ----, 110 S.Ct. at 2643, 110 L.Ed.2d at 543-44.
496 U.S. at ----, 110 S.Ct. at 2645, 110 L.Ed.2d at 545-46.
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