Although in-custody suspect was not given Miranda warnings, suppression of her volunteered statements during field sobriety tests was not required; but Miranda warnings were required before suspect’s response to Romberg test. Cooper crashed her vehicle into another at a high speed. When the police arrived 10 minutes later, Cooper’s eyes were red and watery, she smelled like alcohol, her speech was slurred, she was stumbling, and she was unable to walk straight. She became upset, uncooperative, and began walking around. For safety reasons, an officer decided to take Cooper to the police station to conduct field sobriety tests. In the course of the tests at the station, Cooper made a number of statements as to why she could not perform some of the tests (her thighs were too big, her pants were too tight, and she had a disability) and eventually refused chemical testing. The court denied Cooper’s motion to suppress statements she made at the station based on lack of Miranda advisements. She was convicted of a DUI offense and appealed. Held: Affirmed. Nontestimonial responses by a suspect (volunteered statements) are not subject to the Miranda rule, even if made in the course of custodial interrogation. Additionally, a suspect may be required to participate in field sobriety tests without violating the suspect’s rights under the Fifth Amendment because the evidence procured is of a physical nature rather than testimonial. Here, four of Cooper’s statements were volunteered after the officer asked her to perform physical tests and were not elicited in response to custodial interrogation. Her statement that she did not want to take any more tests was a response to the officer’s inquiry as to whether she would submit to chemical testing, which does not constitute interrogation. However, asking Cooper to perform a modified Romberg test (which required her to estimate a period of 30 seconds) called on her to make a calculation and to communicate an implied assertion of fact or belief, and her incorrect answer to the question was testimonial. But the error in admitting the statement was harmless beyond a reasonable doubt, in light of the evidence against her.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B286201.PDF