Field Sobriety Test Conducted at Trial Not a Fifth Amendment Violation
By Joe Forward, Legal Writer, State Bar of Wisconsin
Nov. 15, 2012 – Field sobriety tests usually occur in the field, on the road, not inside a courtroom. Thus, a defendant objected when a trial court allowed the prosecution to conduct a field sobriety test during a trial against him for operating while intoxicated (OWI).
Specifically, the court allowed the prosecution to give defendant Thomas Schmidt a horizontal gaze nystagmus (HGN) test during a trial, outside the presence of the jury. Nystagmus is an involuntary movement of the eye that can occur when a subject has consumed alcohol. Police generally perform the test by asking the subject to “gaze” at a pen moving side-to-side.
Schmidt had failed this test in April 2010 when he was picking up his daughter from the Winnebago County Jail (of all places). She was charged with OWI (of all charges). The jail suspected that Schmidt himself had been drinking, and he admitted consuming wine.
A deputy performed the HGN, and Schmidt exhibited all six indicia of impairment. He was also unable to complete a walk-and-turn test. With probable cause, police arrested Schmidt for OWI, fourth offense. A blood test confirmed he was driving with prohibited alcohol content.
At trial though, Schmidt argued that nystagmus can be caused by other conditions. To rule out the possibility that Schmidt suffered nystagmus from other conditions, the prosecution asked to perform the HGN test on Schmidt while he was sober, during trial. Schmidt objected.
The trial court allowed it, if Schmidt testified. Schmidt testified and passed the test with flying colors. The results of this test were admitted into evidence, and he was convicted by the jury.
On appeal, Schmidt says allowing the in-court HGN test violated his Fifth Amendment privilege against self-incrimination. A state appeals court recently disagreed.
In State v. Schmidt, 2012AP64-CR (Nov. 14, 2012), the District II Wisconsin Court of Appeals ruled that the Fifth Amendment does not protect physical tests.
The three-judge appeals panel distinguished compelled “testimonial” statements from physical evidence that does not require the defendant to convey statements or communications.
“The privilege does not bar compulsion to submit to physical testing such as fingerprinting, photographing or measuring, writing or speaking for identification, assuming a stance, or making a particular gesture,” wrote Appeals Court Judge Lisa Neubauer.
The court also noted that Schmidt opened the door for an in-court HGN test by suggesting he could have failed for reasons other than alcohol.
