Motor Vehicles – OWI — self-incrimination

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Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI — self-incrimination

It did not violate the Fifth Amendment for the trial court to order the defendant to submit to field tests outside the presence of the jury.

“In Babbitt, the court held that the refusal to perform a field sobriety test was admissible as evidence of probable cause to arrest for OWI and that admission was not a violation of the defendant’s Fifth Amendment right against self-incrimination. Babbitt, 188 Wis. 2d at 362-63. In doing so, the court made clear that the tests themselves are not testimonial. Field sobriety tests are not testimonial in nature because the suspect does not intend to convey a statement as to his or her state of sobriety by performing the test. Furthermore, field sobriety tests involve no requirement that the suspect make admissions or respond to police inquiries regarding prior alcohol use. Id. at 361; see also State v. Isham, 70 Wis. 2d 718, 731, 235 N.W.2d 506 (1975) (voice identification did not violate privilege against self-incrimination because privilege ‘does not reach to words spoken, not for content, but to demonstrate the voice level and voice characteristics’); State v. Mallick, 210 Wis. 2d 427, 435 & n.5, 565 N.W.2d 245 (Ct. App. 1997) (holding privilege does not bar admission of refusal to submit to field sobriety tests and collecting cases rejecting application of Fifth Amendment privilege to physical evidence); State v. Hubanks, 173 Wis. 2d 1, 18, 496 N.W.2d 96 (Ct. App. 1992) (compelled in-court voice sample not testimonial).”

“Schmidt’s time-of-trial HGN test is classic physical evidence. By performing the test, Schmidt was not compelled to disclose his perceptions or thoughts or convey any statement. The test was not testimonial.”

Affirmed.

Recommended for publication in the official reports.

2012AP64-CR State v. Schmidt

Dist. II, Winnebago County, Jorgenson, J., Neubauer, J.

Attorneys: For Appellant: O’Rourke, Michael E., Fond du Lac; For Respondent: Tarver, Sandra L., Madison; Levin, Adam Joseph, Oshkosh