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filed: May 19, 1986.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 840208.


Vicki K. Horne, Greensburg, for appellant.

Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.

Rowley, Wieand and Del Sole, JJ.

Author: Wieand

[ 353 Pa. Super. Page 216]

The major issue raised in this direct appeal from a judgment of sentence imposed for driving while under the influence of alcohol is whether the Commonwealth's use of the results of field sobriety tests violated the guarantee against self-incrimination contained in Article I, Section 9 of the Pennsylvania Constitution. Appellant also challenges (1) the relevance of the results of a blood test taken two hours after arrest and (2) the Commonwealth's right to use the test results where the sample of his blood had been destroyed and was not available for independent testing. We affirm.

[ 353 Pa. Super. Page 217]

At or about 7:19 p.m. on February 14, 1984, Ronald Romesburg was stopped by an officer of the Tri-Area Joint Police Department on Route 19 North in northern Allegheny County after his car had been observed weaving back and forth between highway and berm. The officer smelled and noted a moderate odor of alcohol from appellant's breath. Romesburg's speech was slurred, and his eyes were bloodshot. He was asked to perform several field sobriety tests, which he was not able to perform adequately. Therefore, appellant was placed under arrest and taken to the Franklin Park Police Station. There a breathalyzer test was administered. When the breathalyzer malfunctioned, appellant was taken to Passavant Hospital where, at 9:22 p.m., a sample of his blood was drawn. An analysis of the blood sample established that appellant's blood alcohol concentration was .34 percent. There was also testimony that appellant had eaten breakfast (his only meal of the day) at 6:45 a.m. on February 14th, had drunk a beer about 1:00 p.m., and had been drinking after work at a local pub between 6:00 and 7:00 p.m. He left the pub about 7:00 p.m. Appellant was tried without jury and was found guilty of driving while under the influence of alcohol. A motion for a new trial was denied, and appellant was sentenced to forty-eight hours imprisonment and probation for two years less two days; appellant was also ordered to pay various fines and costs.

The fifth amendment of the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . ." (emphasis added). This protection, it has been held, precludes self-incrimination only by the use of testimonial evidence. See: United States v. Wade, 388 U.S. 218, 221-223, 87 S.Ct. 1926, 1929-1930, 18 L.Ed.2d 1149, 1154-1155 (1967); Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908, 914 (1966). Article I, section 9 of the Pennsylvania Constitution, by way of contrast, provides that "[i]n all criminal prosecutions, the accused . . . cannot be compelled to give evidence against himself. . . ." (emphasis added). Appellant argues that the protection guaranteed

[ 353 Pa. Super. Page 218]

    by Article I, section 9 of the Pennsylvania Constitution is broader than the federal guarantee and includes, in addition to testimonial communications, non-testimonial evidence as well.

While it is true that the guarantees provided by our state constitution may provide greater protection than the guarantees of the federal constitution, Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 466-467 (1983); Commonwealth v. Tate, 495 Pa. 158, 169-170, 432 A.2d 1382, 1387-1388 (1981), the appellate courts of Pennsylvania have consistently held that the protections against self-in-crimination afforded by the two constitutions are identical. See,. e.g., Commonwealth v. Hawthorne, 428 Pa. 260, 262-263, 236 A.2d 519, 520 (1968); Commonwealth v. Carrera, 424 Pa. 551, 553, 227 A.2d 627, 629 (1967); Commonwealth v. Fernandez, 333 Pa. Super. 279, 284, 482 A.2d 567, 569 (1984); Commonwealth v. Webster, 323 Pa. Super. 164, 172, 470 A.2d 532, 536 (1983) (collecting cases). Both state and federal proscriptions "have consistently been held to exclude only evidence which is testimonial in nature. Testimonial evidence is communicative evidence as distinguished from demonstrative or physical evidence." Commonwealth v. Fernandez, supra (citations omitted). The privilege protects an accused from the use of physical or moral compulsion to extract communications, Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 1030 (1910), either in the form of testimony, writing, or other communicative act. Schmerber v. California, supra 384 U.S. at 765, 86 S.Ct. at 1833, 16 L.Ed.2d at 916-917. "Limiting the privilege to testimonial activity . . . serve[s] to apply it to those situations where the compulsion is most likely to be excessive or abused and where it is most likely to result in obtaining unreliable evidence." McCormick on Evidence, ยง 124, at 304 (3rd ed. 1984).

Field sobriety tests do not elicit testimonial or communicative evidence and, thus, do not trigger ...

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