The prosecution may not use statements that stem from a custodial interrogation of a defendant unless the defendant is warned, prior to questioning, that:
the person has the right to remain silent,
that anything the person says can be used against the person in a court of law,
that the person has the right to speak to an attorney and to have an attorney present during any questioning,
and that if the person cannot afford an attorney, one will be provided for the person at no cost to the person.
The United States Supreme Court held in Berkemer v. McCarty (1983), 468 U.S. 420, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317, that roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute a custodial interrogation subject to the procedural safeguards of Miranda. State v. Allen, 1998 MT 293, ¶ 11, 292 Mont. 1, 3, 970 P.2d 81, 82–83.
Montana courts have determined, “[A] request for field sobriety tests, without interrogation, does not subject a detainee to a custodial interrogation. Similarly, the Fifth Amendment offers no protection against compulsion to submit to a breath test because the results of a breath test are not self-incriminating communications, but instead are unprotected physical or real evidence.” Further, “[t]he Fifth Amendment offers no protection against compulsion to assume a stance, to walk, or to make a particular gesture.” State v. Schlichenmayer, 2023 MT 79, ¶ 30, 412 Mont. 119, 130, 529 P.3d 789, 797–98
Therefore, an officer's request that a DUI suspect perform a series of sobriety tests, done without interrogating the suspect, does not constitute custodial interrogation—Miranda warnings are not required. Schlichenmayer, ¶ 30.
With that said, law enforcement’s failure to provide the appropriate Miranda warnings prior to a “custodial interrogation” generally requires courts to suppress evidence of the statements made in violation thereof—your statements are not able to come in at trial. Schlichenmayer, ¶ 27.
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