State v. Maze, 66286

Citation825 P.2d 1169,16 Kan.App.2d 527
Decision Date14 February 1992
Docket NumberNo. 66286,66286
PartiesSTATE of Kansas, Appellee, v. Duane L. MAZE, Appellant.
CourtCourt of Appeals of Kansas

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.

LARSON, Judge:

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

"compelling the defendant merely to perform the coordination or sobriety test on the highway for observation by the patrolman involved no compulsion of the accused to give evidence having testimonial significance.... There was no forced communication by the defendant to disclose any knowledge he might have 'from his own mouth.' " 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.

Justice Brennan, in delivering the opinion of the Court, stated:

"Although the text [Fifth Amendment] does not delineate the ways in which a person might be made a 'witness against himself,' cf. Schmerber v. California, 384 U.S. 757, 761-762, n. 6, 16 L.Ed.2d 908, 86 S.Ct. 1826 [1831 n. 6] (1966), we have long held that the privilege does not protect a suspect from being compelled by the State to produce 'real or physical evidence.' Id., at 764, 16 L.Ed.2d 908, 86 S.Ct. 1826 [at 1832]. Rather, the privilege 'protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.' Id., at 761, 16 L.Ed.2d 908, 86 S.Ct. 1826 [at 1830]. '[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a "witness" against himself.' Doe v. United States, 487 U.S. 201, 210, 101 L.Ed.2d 184, 108 S.Ct. 2341 [2347] (1988)." 496 U.S. at ----, 110 S.Ct. at 2643, 110 L.Ed.2d at 543-44.

"We have since applied the distinction between 'real or physical' and 'testimonial' evidence in other contexts where the evidence could be produced only through some volitional act on the part of the suspect. In United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967), we held that a suspect could be compelled to participate in a lineup and to repeat a phrase provided by the police so that witnesses could view him and listen to his voice. We explained that requiring his presence and speech at a lineup reflected 'compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.' Id., at 222, 18 L.Ed.2d 1149, 87 S.Ct. at 1926; see id., at 222-223, 18 L.Ed.2d 1149, 87 S.Ct. 1926 [at 1930] (suspect was 'required to use his voice as an identifying physical characteristic'). In Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (1967), we held that a suspect could be compelled to provide a handwriting exemplar, explaining that such an exemplar, 'in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the privilege's] protection.' Id., at 266-267, 18 L.Ed.2d 1178, 87 S.Ct. 1951 [at 1953]. And in United States v. Dionisio, 410 U.S. 1, 35 L.Ed.2d 67, 93 S.Ct. 764 (1973), we held that suspects could be compelled to read a transcript in order to provide a voice exemplar, explaining that the 'voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said.' Id., at 7, 35 L.Ed.2d 67, 93 S.Ct. 764 [at 768].

"Under Schmerber and its progeny, we agree with the Commonwealth that any slurring of speech and other evidence of lack of muscular coordination revealed by Muniz's responses to Officer Hosterman's direct questions constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice, see Dionisio, supra, does not, without more, compel him to provide a 'testimonial' response for purposes of the privilege." 496 U.S. at ----, 110 S.Ct. at 2645, 110 L.Ed.2d at 545-46.

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