State v. McKechnie
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MAINE SUPREME JUDICIAL COURT							Reporter of Decisions
Decision:  1997 ME 40 
Docket: KEN-95-769
Submitted on briefs December 13, 1996
Decided March 12, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ,
JJ.

STATE OF MAINE 

v. 

JEFFREY MCKECHNIE

WATHEN, C.J.


	[¶1] Jeffrey McKechnie appeals the judgments entered in the
Superior Court (Kennebec County, Alexander, J.) convicting him for eluding
a police officer in violation of 29 M.R.S.A. § 2501-A, operating under the
influence in violation of 29 M.R.S.A. § 1312-B, aggravated furnishing or
trafficking scheduled drugs in violation of 17-A M.R.S.A. § 1105, possession
of a firearm by a felon in violation of 15 M.R.S.A. § 393, burglary in violation
of 17-A M.R.S.A. § 401, and violation of a bail condition, 15 M.R.S.A. § 1092. 
Defendant contends on appeal that the Superior Court (Crowley, J.) erred in
denying his motion to suppress the results of certain field sobriety tests as
those tests were administered in violation of his rights under the Fifth
Amendment and Article I, § 6 of the Maine Constitution.  Finding no error,
we affirm the judgment.  
	[¶2]  The relevant facts as found at the suppression hearing are as
follows.  On the evening of August 20, 1994, Officers Toman and Guilmette 
of the Gardiner Police Department were positioned on Route 201 near the
home of Maria Dorso.  Dorso had requested that a patrol car stop by her
place that evening after defendant called her from a bar where he had been
drinking.  Both officers involved had responded to various domestic violence
and harassment calls involving the couple in the past.  Shortly after the
officers arrived, they spotted defendant's car approximately one mile from
Dorso's residence.  They pulled behind defendant and pursued him at
speeds approximating ninety miles per hour in a fifty-five mile per hour
zone with their lights flashing and at least one siren active until defendant
screeched to a halt in Dorso's driveway.
	[¶3]  Defendant got out of his car and began to walk toward Dorso's
trailer.  Guilmette ordered him to stop and he did.   He patted defendant
down and noticed that defendant had bloodshot eyes and difficulty with his
balance.  At that point, Guilmette asked defendant to perform field sobriety
tests.  Defendant expressed no hesitation or unwillingness and consented to
do so.  Guilmette administered a heel-to-toe test, a finger-to-nose test, and
an alphabet test.  Defendant did not properly perform the heel-to-toe test. 
He missed his nose and swayed while performing the finger-to-nose test. 
While indicating that he knew the alphabet, defendant lost his place during
two attempts to recite it.  At that point, Guilmette placed him under arrest.
	[¶4]  At the station, defendant was read an implied consent form.  He
agreed to take an intoxilyzer test but failed to complete it.  Guilmette
testified that defendant was not actually trying to complete the test. 
Defendant was then read his Miranda rights.  It was 2:30 a.m.  Defendant
indicated that he understood his rights and agreed to answer some
questions.  He stated that he had consumed two beers, the last of which was
consumed at 9:30 p.m.  He also stated, in response to questioning, that he
was affected by what he had to drink and that he was not fit to drive.  
	[¶5]  Defendant was released on bail under conditions, including that
he have no contact with Dorso.  The evidence at the trial revealed that
defendant returned to Dorso's residence after being released on bail, broke
into the trailer, and accosted Dorso.  The arrival of the police caused
defendant to flee.  He was later rearrested.  
	[¶6]  Defendant was indicted for burglary, eluding a police officer,
possession of a firearm by a felon, operating under the influence, assault, and
violation of a bail condition and he entered not guilty pleas to these charges. 
Defendant then filed a motion to suppress certain evidence including any
testimony concerning the results of the field sobriety tests administered by
Guilmette.  The court suppressed the results of the alphabet field sobriety
test but denied defendant's request to suppress the results of the heel-to-
toe and finger-to-nose tests.  After a jury trial, defendant was convicted of all
charged offenses, except assault, and sentenced.  Defendant appeals his
convictions.
	[¶7]  Defendant contends that the heel-to-toe and finger-to-nose test
results obtained on the night in question were testimonial in nature and
were elicited during custodial interrogation that took place before his
Miranda warnings.  Thus, he argues, the test results were obtained in
violation of the Fifth Amendment, as interpreted by Miranda v. Arizona, 384
U.S. 436 (1966), and in violation of the Maine Constitution.  The privileges
against self-incrimination contained in both the Fifth Amendment and
Article I, section 6 of the Maine Constitution are intended to protect
persons against the compulsion of testimonial evidence.  Schmerber v.
California, 384 U.S. 757, 761 (1966); State v. Nason, 433, 424, 428 (Me.
1981).  The Miranda warnings required in the presumptively coercive
environment created by custodial interrogation, are meant to serve the same
purpose.{1}  Thus, if evidence obtained during custodial interrogation is not
testimonial, neither the Miranda decision nor the Maine Constitutional
privilege is implicated.
	[¶8]  In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638 (1990),
the United States Supreme Court was called on to decide "whether various
incriminating utterances of a drunk-driving suspect, made while performing
a series of sobriety tests, constitute testimonial responses to custodial
interrogation for purposes of the Self-Incrimination Clause of the Fifth
Amendment."  Id. at 584.  The Court held:  "'[I]n order to be testimonial, an
accused's communication must itself, explicitly or implicitly, relate a factual
assertion or disclose information.'"  Pennsylvania v. Muniz, 496 U.S. 582,
589, 110 S.Ct. 2638, 2643 (1990) (quoting Doe v. United States, 487 U.S.
201, 210, 108 S.Ct. 2341, 2347, 101 L.Ed.2d 184 (1988)).  It concluded
that the content of Muniz's response to the question "Do you know what the
date was of your sixth birthday?" was testimonial.  Id. at 598-600.  The court
distinguished the content of the response from the physical inability of the
defendant to respond clearly.
  
Under Schmerber and its progeny, we agree with the Commonwealth
that any slurring of speech and other evidence of lack of muscular
coordination revealed by Muniz's responses to Officer Hosterman's
direct questions constitute nontestimonial components of those
responses.

Id. at 592.  
	[¶9]  While not deciding the issue, the Court also noted that the
Pennsylvania court's refusal to suppress the results of Muniz's sobriety tests
was "in accord with [the conclusions] of many other state courts, which have
reasoned that standard sobriety tests measuring reflexes, dexterity, and
balance do not require the performance of testimonial acts."  Id. at 602-603
n. 16; see also State v. Burns, 661 So.2d 842, 848 (Fla.Dist.Ct.App. 1995)
(finger-to-nose and heel-to-toe tests nontestimonial); Commonwealth v.
Hayes, 674 A.2d 677 (Pa. 1996) (horizontal gaze nystagmus test, walk-and-
turn test, and one-leg stand test not testimonial under federal or state
constitutions); State v. Maze, 825 P.2d 1169 (Kan.Ct.App. 1992) (horizontal
gaze nystagmus test, one-leg stand test, heel-to-toe test non-testimonial);
Farmer v. Commonwealth, 390 S.E.2d 775, 780 (Va.Ct.App. 1990) (to the
extent that field sobriety tests are dexterity tests, the results of such tests
constitute real evidence); Commonwealth v. Brennan, 438 N.E.2d 60, 64
(Ma. 1982) (defendant's performance in finger-to-nose test, while picking
up coins, and while walking a straight line not testimonial under state or
federal constitutions).   
	[¶10] We endorse the rationale expressed in Muniz, and conclude that
the results of the heel-to-toe and finger-to-nose tests obtained in this case
are not communicative in nature.  They are simply tests designed to reveal a
"lack of muscular coordination" that may evidence impairment resulting
from the use of alcohol.  The tests do not elicit testimony.  Because the Fifth
Amendment only prohibits the compulsion of testimony, Miranda warnings
need not have preceded the tests.  Similarly, because the protections of the
Maine Constitution only extend to testimonial evidence, the state privilege
was not implicated by the administration of the two dexterity tests in
question.  State v. Eastman, 1997 ME 39,      A.2d     .  The Superior Court
did not err in denying defendant's motion to suppress.
	The entry is:

Judgments affirmed.

                                                                          

Attorneys for State:

David W. Crook, District Attorney
Paul Rucha, Asst. Dist. Atty.
95 State Street
Augusta, ME 04330

Attorney for defendant:

Andrew B. Maclean, Esq.
Doyle & Nelson
P O Box 2709
Augusta, ME 04330

FOOTNOTES******************************** {1} We have never required the Miranda warnings as a matter of state constitutional law. State v. Gardiner, 509 A.2d 1160, 1162-1163 (Me. 1986). "Whether Miranda is applicable in any given situation is accordingly a matter of federal constitutional law." Id. The procedure created by this court to satisfy the requirements of Me.Const., art. I, § 6 is set forth in State v. Snow, 513 A.2d 274, 276 (Me. 1986). If a defendant contends that any statements were obtained through compulsion, the State must prove, beyond a reasonable doubt, that they were voluntary. Id. (citing State v. Collins, 297 A.2d 620, 627 (Me. 1972)). The Superior Court found in this case that defendant's compliance with the request for field sobriety tests was voluntary.