OWI: HGN Test, Outside Presence of Jury – Self-Incrimination

State v. Thomas E. Schmidt, 2012 WI App 137 (recommended for publication); case activity

After performing an HGN test, which exhibited 6 out of 6 indicia of impairment, Schmidt was arrested for OWI. At the ensuing trial, he asserted diabetes as a possible cause for the HGN result. The trial court ordered, as a condition of his testifying to this effect, that he submit to an HGN test outside the presence of the jury. The result of that test was zero out 6 indicia of impairment. He argues on appeal that this test violated his right against compelled self-incrimination. The court rejects the argument, on the rationale that this prohibition “applies only to testimonial or communicative evidence, not to physical tests,” ¶7, citing State v. Babbitt, 188 Wis. 2d 349, 360-61, 525 N.W.2d 102 (Ct. App. 1994).

¶8        Wisconsin follows this long-standing rule.  In Babbitt, … the court made clear that the tests themselves are not testimonial. … Id. at 361; see also State v. Isham, 70 Wis. 2d 718, 731, 235 N.W.2d 506 (1975) (voice identification did not violate privilege against self-incrimination because privilege “does not reach to words spoken, not for content, but to demonstrate the voice level and voice characteristics”); State v. Mallick, 210 Wis. 2d 427, 435 & n.5, 565 N.W.2d 245 (Ct. App. 1997) (holding privilege does not bar admission of refusal to submit to field sobriety tests and collecting cases rejecting application of Fifth Amendment privilege to physical evidence); State v. Hubanks, 173 Wis. 2d 1, 18, 496 N.W.2d 96 (Ct. App. 1992) (compelled in-court voice sample not testimonial).

¶9        Schmidt’s time-of-trial HGN test is classic physical evidence.  By performing the test, Schmidt was not compelled to disclose his perceptions or thoughts or convey any statement.  The test was not testimonial.