State v. Meek , 1989 S.D. LEXIS 131 ( 1989 )

MILLER, Justice

(on reassignment).

In this intermediate appeal we reverse the trial court, reiterating our prior holdings that field sobriety tests are not protected by the constitutional privilege against self-incrimination.

FACTS

In the early morning hours of March 5, 1988, Highway Patrolman Randy Hofeldt observed Delmas Meek’s vehicle weaving between the lanes of U.S. Highway 14 in Hyde County, South Dakota. Officer Ho-feldt stopped Meek’s vehicle. He approached the vehicle and observed that Meek had blood-shot and glassy eyes, a flushed face and slurred speech. Hofeldt also detected a strong odor of alcohol and observed that Meek was unsteady on his feet and had difficulty walking.

In the patrol car, Hofeldt requested Meek to perform certain field sobriety tests. A recorded cassette of the conversation reveals that Meek initially refused to perform the tests, asserting his Fifth Amendment right against self-incrimination.

Hofeldt: OK. It does appear that you’ve been drinking quite a little tonight. I’m going to ask you to do some sobriety tests. The first thing I would like you to do is just to recite the alphabet start with A and go through Z. Can you do that for me?

Meek: I’ll tell you what. Are you charging me?

Hofeldt: Charging you with what? Meek: What?

Hofeldt: No. I’m not charging with anything. I’m just asking you to do some sobriety tests for me.

Meek: I’ll be very honest with you. I won’t do anything.

Hofeldt: You won’t do nothing?

Meek: No. I plead the Fifth Amendment.

Hofeldt: Well, Sir. You know, I think it would probably be to your advantage to try to do some tests for me. Uh. You know? Would you try to recite the alphabet for me?

Following Officer Hofeldt’s statement, Meek attempted three different sobriety tests which Hofeldt asked him to perform. Each test required verbal responses by Meek. He had difficulty with each. Ho-feldt also attempted to administer a fourth test, a gaze nystagmus test. However, a dispute arose whether Meek’s eyes were following the pen held by Hofeldt. Hofeldt then asked Meek to take a breathalyzer test. Meek refused.

Meek: I won’t. Already said I pled the Fifth Amendment.

Hofeldt: Well, you know we’ve got along pretty good so far and I think we can continue to get along can’t we?

Meek: Yah but I won’t.

Hofeldt: Just blow a breath through there for me and we’ll be done.

Meek: No we won’t.

Hofeldt: You won’t blow through the breath tester?

Meek: No.

Hofeldt: It’s just a preliminary — just a pass or fail test like we did, just like the ones we’ve already done. Will you blow through it for me?

Meek: No I won’t.

Hofeldt: OK. Well I am placing you under arrest for DWI as a result of your driving and your other sobriety tests that you did. That — it appears that you are very much under the influence of alcohol.

Meek was charged with driving while under the influence of alcohol under SDCL 32-23-1. He filed a motion to suppress the cassette tape of the conversation between Meek and Hofeldt, all of Meek’s statements after he asserted his privilege against self-incrimination, and all testimony concerning field sobriety tests or other statements made by Meek after he had asserted his right against self-incrimination. Following a hearing, the trial court suppressed all testimony concerning Meek’s assertion of his privilege against self-incrimination and all statements made by him thereafter, including the verbal responses to the sobriety tests administered to him. The court specifically found that the responses to the verbal sobriety tests were testimonial and protected by the privilege against self-incrimination. The court did not suppress testimony concerning the gaze nystagmus test or the officer’s observations concerning Meek’s physical characteristics.¹ We accepted intermediate appeal and reverse and remand.

ISSUE

WHETHER FIELD SOBRIETY TESTS ARE PROTECTED BY THE PRIVILEGE AGAINST SELF-INCRIMINATION.

DECISION

The privilege against self-incrimination is granted by both the state and federal constitutions. Article VI, Section 9 of the South Dakota Constitution provides: “No person shall be compelled in any criminal case to give evidence against himself....” (Emphasis added.) The Fifth Amendment to the United States Constitution provides: “No person ... shall be compelled, in any criminal case, to be a witness against him-self_” (Emphasis added.)

Meek, a layman, presumably did not realize and the trial court failed to recognize or fully appreciate that field sobriety tests are not protected by the constitutional privilege against self incrimination. State v. Hoenscheid, 374 N.W.2d 128 (S.D.1985) and State v. Roadifer, 346 N.W.2d 438 (S.D.1984). As Justice Morgan, writing for the majority in Roadifer, so clearly stated:

Dexterity tests are real physical evidence and are not protected by the constitutional privilege against self-incrimination. (Citation omitted.) These tests are based on the loss of coordination, balance and dexterity that results from intoxication, they do not force the subject to betray his subjective knowledge of the crime through communication or testimony. These tests merely compel the suspect to demonstrate his physical characteristics and condition at that time as a source of real or physical evidence to which observers may testify. (Emphasis added.)

346 N.W.2d at 440.

Additionally, in Roadifer, this court clearly stated that audio tapes that merely show the manner of the defendant’s attempt to count backwards or recite the alphabet as requested are admissible. Id. at 441; see also Hoenscheid, 374 N.W.2d at 130.

Therefore, under the settled law of this state, the trial court erred in suppressing the results of any dexterity or verbal sobriety tests,² but could and should suppress any evidence relating to any conversations or statements made by Meek after he asserted his Fifth Amendment right. The trial court further erred in suppressing those parts of the tape specifically relating to the field sobriety tests.³

Lastly, much is made of Hofeldt’s claimed coercion or deceit in obtaining the sobriety tests. From reading the transcript and listening to the tape, we cannot blindly accept the bad faith assertion. The claimed coercion or deceit flows from Ho-feldt’s statement that “it would probably be to (Meek’s) advantage to try to do some of the tests_” Although we do not condone that statement, it is truthful because: (1) Meek could perhaps pass some or all of the tests or (2) his refusal to perform them is admissible and could be viewed negatively by a fact-finder at trial. Hoenscheid, supra.

Reversed and remanded to the trial court with directions that it proceed as herein provided.

WUEST, C.J., and MORGAN, J., concur. HENDERSON and SABERS, JJ., dissent.

1 . Meek has not appealed this ruling by the trial court.

2 . The trial court specifically suppressed an alphabet test, a test by which Meek was to count backwards, and a test for digital control in which Meek was to touch various fingers with his thumb while audibly counting.

3 .We appreciate that editing the tape may be a most difficult and impractical task; however, that problem is best left to those who need to do the editing.