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Field Sobriety Tests Are Not Protected By the 5th Amendment According to the Court of Appeals of Virginia

In the United State Supreme Court case Miranda v. Arizona, 384 U.S. 436 (1966); the Court interpreted the Fifth Amendment to the U.S. Constitution to guarantee that “no person could be compelled in any criminal case to be a witness against himself.” This included a privilege against self-incrimination for individuals who were subjected to custodial interrogation by the police. Essentially, after this landmark case, police officers were required to tell you when you were in custody or physically under the police officer’s control and that you had the right to remain silent and consult with an attorney before making any further statements to the police.

As a general rule, statements that are obtained through a police interrogation that is in violation of the Miranda provision may be suppressed or not used against the defendant at trial if a suppression motion is made and granted by the court. A recent case that was decided by the Virginia Court of Appeals involved a question of law that concerned whether a field sobriety test was protected by the Fifth Amendment to the Constitution.

In the case of Ray Anthony Gibson v. Commonwealth of Virginia, decided March 22, 2011, the defendant had been pulled over by a Virginia police officer for a routine traffic violation. When the officer ran Gibson’s driver’s license, he noticed that the license was revoked. The officer smelled alcohol coming from the vehicle and asked Gibson whether he had been drinking. Gibson answered in the affirmative.

The officer asked Gibson to participate in several field sobriety tests. Gibson failed each test. The officer took Gibson to jail and asked him to submit to a breath test. The results of that test indicated that Gibson’s blood alcohol content level was .17, a level that is significantly greater than the legal limit in Virginia. Gibson was arrested and charged with driving under the influence of alcohol and operating a motor vehicle without a license.

Prior to trial, Gibson filed a suppression motion with the court in an effort to suppress any statements that he had made to the police officer and the results of the field sobriety tests that were administered by the officer. As grounds for the motion, Gibson stated “he was not read the Miranda warnings after he was initially arrested for driving after his license had been revoked.” The trial court denied the motion with respect to the results of the field sobriety tests. Gibson was found guilty for driving under the influence and appealed his case to the Virginia Court of Appeals.

The primary function of the Court of Appeals is to rule on specific questions of law that arise in cases that are decided by the lower trial courts. Therefore, in this case, the appeals court was not going to determine whether Gibson was in fact guilty of driving under the influence of alcohol, but rather, whether the trial court was correct in denying Gibson’s motion to suppress evidence from the field sobriety tests.

After hearing the evidence in the case, the Court of Appeals denied Gibson’s motion and sustained the decision made by the trial court. The court noted that there are limitations to the protections offered by the Fifth Amendment to the U.S. Constitution. Specifically, “the right against self-incrimination applies only when the accused is compelled to make a testimonial communication that is incriminating.” Fisher v. United States, 425 U.S. 391 (1976). “Generally, a testimonial communication involves a verbal or written statement but it may also include acts.” However, a “compelled act which makes a suspect the source of real or physical evidence is not generally considered a testimonial communication.” Schmerber v. California, 384 U.S. 757 (1966)

The court in this case went on to point out that the Fifth Amendment does not protect compelled breath tests, fingerprinting, photographing or bodily measurements. The court finally reasoned that “neither the physical components of the field sobriety tests nor Gibson’s inability to perform them constitute a testimonial communication” that is protected by the Fifth Amendment to the U.S. Constitution.


Michael S. Weisberg, P.C.
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