The Virginia Court of Appeals recently addressed the question of whether an officer must offer Miranda warnings to an accused before offering DUI field sobriety tests in Gibson v. Commonwealth.
The court found that Miranda warnings (a reading of your rights, including your right to remain silent) are not required before an offer administers field sobriety tests. The warnings are also not required, according to the court, before the officer questions a suspected intoxicated driver about his drinking and/or any physical problems that might affect the field tests.
Miranda Warnings Required In Virginia When a Person is In Custody and Being Questioned
Normally, Miranda warnings are not required until two factors are met: (1) the person is in custody, and (2) they are being questioned. The United States Supreme Court previously held that a person is not in "custody" until they are physically cuffed and arrested at the end of a DUI or DWI stop.
Field Sobriety Tests Are Not Testimonial
However, in Gibson, the driver had been arrested for driving on a revoked license. It wasn't until he was arrested that the officer realized he might also be driving under the influence. Despite the fact that the driver was in custody, the court found that Miranda warnings were not required because field sobriety tests are not "testimonial" in nature, and therefore do not fall under the protection of the 5th Amendment. The court stated that "[f]or a communication to be considered testimonial, the speaker (or actor) must 'reveal, directly or indirectly, his knowledge of facts relating him to the offense or . . . share his thoughts and beliefs with the Government' . . . [g]enerally, a 'testimonial communication' involves a verbal or written statement, but it may also include acts." Moreover, because the officer's questioning pertained to the administration of the field sobriety tests, the court also found such evidence was properly admitted.