NEW YORK DRIVING WHILE INTOXICATED: OFFICER DOES NOT HAVE TO READ MOTORIST MIRANDA WARNINGS PRIOR TO THE ADMINISTRATION OF ALPHABET RECITATION TEST OR THE FINGER COUNTING TEST

Previously I discussed New York Court of Appeal’s cases which held that the police do not have to read a DWI suspect his or her rights before requesting that they perform Field Sobriety Tests because such tests are not testimonial or communicative. People v. Hager, 69 N.Y.2d 141, 512 N.Y.S.2d 794 (1987); People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999).
But where the officer requests the suspect to recite the alphabet or perform a finger count test, those responses are verbal and therefore, at the very least communicative. However, the Third Department has held that an officer need not read a suspect his or her Miranda Warnings prior to requesting that the suspect recite the alphabet or perform the finger count test because such tests are not communicative or testimonial in that they don’t reveal the person’s subjective knowledge or thought processes. People v. Hasenflue, 252 A.D.2d 829, 675 N.Y.S.2d 464 (3rd Dept. 1998). The Court of Appeals has reached the same conclusion regarding the alphabet and finger count tests. People v. Berg, 92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999)(these tests are not testimonial or communicative in that they do not require a person to reveal knowledge of facts relating to the offense).
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