SCOTT VANHOUTON vs. COMMONWEALTH (and a consolidated case). COMMONWEALTH vs. SCOTT VANHOUTON.

GREANEY, J. The defendant, Scott Vanhouton, is charged in the Superior Court with operating a motor vehicle while under the influence of intoxicating liquor, fifth offense. G. L. c. 90, s. 24 (1) (a) (1). He filed a motion to dismiss the indictments on the ground of double jeopardy, which was denied. The defendant thereafter filed a motion to suppress the results of field sobriety tests that had been administered to him. [Note 1] He argued, among other issues, that requiring him to take the tests violated his privileges against self-incrimination as secured by the Fifth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution. [Note 2] An evidentiary hearing was held on the motion to suppress, after which the judge made findings of fact and rulings of law. The judge denied the motion to suppress with respect to evidence of the defendant's performance on the heel-to-toe and the one-legged standing tests, but he allowed the motion with respect to evidence of the defendant's performance on the alphabet recitation test. A single justice of this court granted the applications of the defendant and the Commonwealth to pursue interlocutory appeals from the orders on the motion to suppress, see Mass. R. Crim. P. 15 (b) (2), 378 Mass. 882 (1979); G. L. c. 278, s. 28E, and those appeals were consolidated with the defendant's appeal from the denial of his motion to dismiss. We conclude that the motion to dismiss was properly denied. We also

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conclude that the judge correctly denied the motion to suppress with respect to the evidence of the heel-to-toe and one-legged standing tests, but that he erred in allowing that motion with respect to evidence of the alphabet recitation test.

The facts found by the judge on the motion to suppress may be summarized as follows. On the night of September 21, 1994, Officer Daniel McNeil of the Salisbury police department was on duty in a patrol car in Salisbury Center. The area was well lit. At about 11:50 P.M., Officer McNeil observed a white automobile, which was being driven erratically, make a left turn in a jerking manner. The officer followed the automobile for about 150 yards and observed it drift left to right in its own travel lane. Officer McNeil stopped the automobile and asked the driver, who was identified as the defendant, to show his license and registration. The defendant produced a valid driver's license, but could not locate his registration, which was in his lap. The officer detected a strong odor of alcohol and also noticed that the defendant's eyes were bloodshot.

After having him step out of the car, Officer McNeil asked the defendant, who, according to the findings, "appeared on the surface to be in good shape," to perform field sobriety tests. The defendant was not advised that he could refuse to take the tests. The defendant was not able to perform the heel-to-toe test, staggering to the right on the first step. [Note 3] The defendant then failed the one-legged standing test. [Note 4] Finally, when asked to recite the alphabet, the defendant could not complete the test, and his attempt to do so was marked by slurred speech. [Note 5] Officer McNeil, who had watched the defendant's efforts from about three to four feet away, then placed the defendant under arrest for operating a motor vehicle while under the influence of intoxicating liquor.

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The judge extensively discussed his view of the law in connection with the rulings on the motion to suppress. We shall refer to the pertinent rulings as we discuss the issues raised on appeal. We accept the judge's findings of fact as supported by the evidence, but we make our own independent determinations in the correctness of his application of constitutional principles to the facts. See Commonwealth v. Cunningham, 405 Mass. 646, 655 (1989); Commonwealth v. Tavares, 385 Mass. 140, 145, cert. denied, 457 U.S. 1137 (1982), and cases cited.

1. According to his motion to dismiss, after his arrest the defendant was taken to the police station, where he refused to take a breathalyzer test. The police seized the defendant's driver's license and issued him a temporary driving permit, as required by G. L. c. 90, s. 24 (1) (f) (1) (i)-(iii), as appearing in St. 1994, c. 25, s. 5. The defendant's motion to dismiss argued that the administrative seizure of his driver's license constituted a punishment, and that therefore his subsequent criminal prosecution for operating a motor vehicle while under the influence of intoxicating liquor gave rise to the protections against double jeopardy contained in the Fifth Amendment to the United States Constitution and Massachusetts common law. The defendant's argument is entirely foreclosed by our decisions in Leduc v. Commonwealth, 421 Mass. 433 (1995), cert. denied, 117 S. Ct. 91 (1996), and Luk v. Commonwealth, 421 Mass. 415 (1995). The motion to dismiss was correctly denied.

2. We turn to the issues pertaining to the motion to suppress. The judge ruled that the defendant was in custody at the time the field sobriety tests were given and, citing Rhode Island v. Innis, 446 U.S. 291, 301-302 (1980), that, in the judge's words, the defendant "was being 'interrogated' when he was asked to perform the field sobriety tests which [Officer McNeil] certainly knew were 'reasonably likely to elicit an incriminatory response.'" Based on these conclusions, the judge ruled, relying on Commonwealth v. Brennan, 386 Mass. 772 (1982), that evidence of the defendant's performance in the heel-to-toe and leg-standing tests was admissible because these tests involved real or physical evidence that did not implicate either the Fifth Amendment or art. 12. However, relying principally on Pennsylvania v. Muniz, 496 U.S. 582 (1990), the judge ruled that evidence of the results of the

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alphabet recitation test was testimonial, implicated both privileges, and had to be suppressed.

The defendant argues that the judge's ruling that he was in custody should be upheld and that, because he was in custody, Officer McNeil was required to furnish him with the warnings required by Miranda v. Arizona, 384 U.S. 436, 444 (1966), before any field sobriety tests were administered. [Note 6] The defendant argues further that all the tests were testimonial and, as a consequence, the results of his performance on the heel-to-toe and leg-standing tests should be suppressed. The Commonwealth argues that the judge's order with respect to the result of the heel-to-toe and leg-standing tests should be affirmed based on the holdings and reasoning of Commonwealth v. Brennan, supra, and that the order suppressing the results of the alphabet recitation test should be reversed because the defendant was not compelled to take the test, and the test does not involve testimonial evidence.

(a) The judge's ruling that the defendant was in custody during the investigation for purposes of the Fifth Amendment is wrong. A defendant's custody and the resulting need for Miranda warnings is a question solely of Federal constitutional law. The United States Supreme Court has expressly held that a motorist who is temporarily detained after being stopped on suspicion of operating a motor vehicle while under the influence of intoxicating liquor is not held in custody, and, as a result, the investigating police officer is not required to furnish Miranda warnings to the motorist before administering field sobriety tests. The Court first reached this conclusion in Berkemer v. McCarty, 468 U.S. 420, 438-440 (1984), and reiterated the holding of the Berkemer decision in Pennsylvania v. Bruder, 488 U.S. 9, 11 (1988), a case with facts virtually identical to the facts of this case. [Note 7] The Appeals Court has consistently applied the holdings of these two

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Federal decisions in circumstances similar to this case, and has rejected arguments that Miranda warnings were necessary on the ground that the detained motorist was not in custody. See Commonwealth v. D'Agostino, 38 Mass. App. Ct. 206, 208, S.C., 421 Mass. 281 (1995); Commonwealth v. Smith, 35 Mass. App. Ct. 655, 657-658 (1993); Commonwealth v. Ayre, 31 Mass. App. Ct. 17, 20 (1991); Commonwealth v. McNelley, 28 Mass. App. Ct. 985, 986 (1990). There is nothing in the facts found by the judge that takes the case outside of a routine stop and investigation for suspected drunk driving, with the result that the Berkemer and Bruder decisions apply here.

It follows from what has been said that the defendant's argument that Miranda warnings were required must fail. [Note 8] It also follows that Officer McNeil's request that the defendant perform field sobriety tests did not involve, with respect to any of the tests, compulsion sufficient to trigger the protection of the Fifth Amendment. [Note 9] See South Dakota v. Neville, 459 U.S. 553, 562-563 (1983); McAvoy v. State, 314 Md. 509,

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514-515 (1989); State v. Bowers, 250 Neb. 151, 163 (1996). See also Stone v. Huntsville, 656 So. 2d 404, 411 (Ala. Crim. App. 1994); State v. Pilik, 129 Idaho, 50, 53 (Ct. App. 1996); Commonwealth v. Toanone, 381 Pa. Super. 336, 345 (1989); State v. Strausberg, 895 P.2d 831, 834-335 (Utah Ct. App. 1995).

(b) We are left to determine whether the performance of any of the tests implicated the self-incrimination provision of art. 12.

The defendant's argument that the heel-to-toe and leg-standing tests constituted testimonial evidence is answered completely by Commonwealth v. Brennan, supra, where, after a thorough review and analysis of the history and purpose of the self-incrimination provision in art. 12, it was specifically held that the field sobriety tests given to Brennan, which measured his physical coordination, were not "communicative to the extent necessary to evoke the privilege" conferred by art. 12. [Note 10] Id. at 783. The defendant suggests that the Brennan case was wrongly decided. We are not persuaded by any of his arguments on the point, and we reject the suggestion.

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The alphabet recitation test was not one of the tests involved in the Brennan case. We do not generally consider the application of art. 12 in terms of custody or noncustody. This distinction is part of Federal constitutional law designed to protect a suspect's or accused's rights under the Fifth Amendment, and the distinction lies at the root of the application of the Federal privilege that requires Miranda warnings before law enforcement officers engage in questioning that is likely to incriminate the suspect or accused. Nevertheless, it is arguable that the defendant was not "compelled" to take the alphabet recitation test so as to raise self-incrimination concerns under art. 12. The defendant was free to refuse to perform any of the field sobriety tests requested by Officer McNeil, and the communicative fact of his refusal could not be admitted in evidence against him at trial. See Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995). On the other hand, the defendant's refusal to take the test undoubtedly would have led to his continued detention and further questioning, after which Officer McNeil, rightly or wrongly, likely would have relied on the defendant's refusal as a basis for placing him under arrest.

We choose to pass on the question whether the defendant was "compelled," in the sense that the term is used in art. 12, to take the alphabet recitation test, and rest our decision that suppression is not required on the ground that the test does not evoke evidence within the scope of art. 12. [Note 11]

The self-incrimination provision in art. 12 protects against the forced disclosure of testimonial or communicative evidence, namely evidence that reveals the subject's knowledge or thoughts concerning some fact. See Commonwealth v. Brennan, supra at 780. With respect to art. 12, we said the following in Commonwealth v. Brennan, supra:

"It has been said that art. 12 and the many similar constitutional provisions of other States merely restated

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the common law rule against self-incrimination. Commonwealth v. Joyce, 326 Mass. 751, 756, 757 (1951). Brown v. Walker, 161 U.S. 591, 596-597 (1896). See generally 8 J. Wigmore, Evidence s.s. 2250, 2251 (McNaughton rev. 1961); Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763 (1935). The common law privilege evolved from general disapproval of the inquisitorial practices that existed prior to 1700 in the ecclesiastical courts and the courts of Star Chamber and High Commission in England. See E. Dumbauld, The Bill of Rights, and What It Means Today 77 (1957). 8 J. Wigmore, supra. McCormick, Evidence s. 114 (2d ed. 1972). Even a cursory review of the history of the privilege leaves little doubt that the privilege was directed toward the forced extraction of confessions and admissions from the lips of the accused. This suggests that the framers of our Declaration of Rights did not contemplate that art. 12 apply to real or physical evidence, the production of which would have no inherently communicative value."

We also emphasized in the Brennan decision that "[t]he refusal of most courts to adopt an expansive interpretation of the [self-incrimination] privilege [contained in their State Constitutions] has undoubtedly stemmed in part from a concern for the severe constraints on law enforcement practices that would otherwise result, and from the fact that compelled production of physical evidence is far less offensive to common standards of decency." Id. at 782-783.

The recitation of the alphabet from A to Z is an exercise, which when utilized as a field sobriety test with a suspect asked to perform the test in his or her own language, is not subject to the privilege contained in art. 12. The fact that a motorist must use his or her voice to perform the test does not necessarily make the response testimonial any more so than would the giving of a voice exemplar. The alphabet constitutes a set of generic linguistic symbols that the average person masters early in life and learns to recite by rote. The alphabet cannot be fabricated or guessed at, so a person reciting it is not faced with the dilemma of deciding between a true or false answer. As such, the recitation of the alphabet

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lacks inherent communicative value because it does not convey knowledge of any fact specific to the person being questioned. In a roadside drunk driving inquiry by a police officer, the recitation determines only whether the motorist's memory is impaired and whether the motorist has sufficient mental coordination to perform a rudimentary psychological exercise. In this respect, the test is directed at the reflexive functioning of the motorist's mental processes, and it provides a basis for ascertaining the extent to which those processes may be affected by the motorist's consumption of alcohol. Further, the fact that the motorist might slur his or her speech while reciting the alphabet, thereby indicating intoxication, is not significant. "The physical inability to articulate words in a clear manner due to 'the lack of muscular coordination of . . . tongue and mouth' . . . is not itself a testimonial component of [the suspect's] responses to [the investigating police officer's] . . . questions." Pennsylvania v. Muniz, supra at 590-591. "Certainly, [the defendant's] inability to recite the alphabet . . . incriminated him. Intoxication increases reaction time and reduces speed of motor responses, including those of auditory discrimination and judgment.... The [test] did not require the [defendant] to disclose his knowledge of his intoxication. [The test combined with the physical coordination tests] elicited tangible evidence of the . . . condition of the [defendant's] body. The responses were no more testimonial or communicative than a voice exemplar . . . or a blood sample . . ." (citations omitted). Edwards v. Bray, 688 F.2d 91, 92 (10th Cir. 1982).

The same conclusion has been reached by the vast majority of other jurisdictions that have addressed the issue. The decisions hold that a straightforward alphabet recitation test (or comparable counting exercises), performed during a roadside investigation of suspected drunk driving, is outside the protective sphere of the privilege against self-incrimination because there is no disclosure of subjective knowledge or thought processes in a constitutionally prohibited sense. See State v. Superior Court, 154 Ariz. 275 (Ct. App. 1987); Oxholm v. District of Columbia, 464 A.2d 113, 114 (D.C. 1983); Lankford v. State, 204 Ga. App. 405, 406-407 (1992), cert. denied, 506 U.S. 1051 (1993); People v. Bugbee, 201 Ill. App. 3d 952, 959 (1990); State v. Maze, 16 Kan. App. 2d 527, 532 (1992); People v. Burhans, 166 Mich. App. 758, 762-763 (1988)

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counting test); State v. Thompson, 237 Mont. 384, 387 (1989); State v. Zummach, 467 N.W.2d 745, 746 (N.D. 1991); State v. Medenbach, 48 Or. App. 133 (1980); State v. Meek, 444 N.W.2d 48, 50 (S.D. 1989). [Note 12]

3. The order denying the defendant's motion to dismiss is affirmed. The order allowing the defendant's motion to suppress with respect to evidence of the alphabet recitation test is reversed, and that part of the motion is denied. The order denying the remainder of the motion to suppress with respect to evidence of the heel-to-toe and leg-standing tests is affirmed.

So ordered.