The 5the Amendment of the United States Constitution states, "…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself.." These important provisions provide two important protections for U.S. citizens.
First is the double jeopardy clause. Under this, you should only have to stand trial one time. After that, you are supposed to be free from further prosecution. Unfortunately, this doesn't always play out as one would think. For example, in the case below, the Court decided it was allowable to have a person address the criminal court in one case and the administrative issues in a completely different case, even though it was surrounding the same situation.
Second, is the right not to have to testify against yourself. Unfortunately, this doesn't always play out as one would think either. For example, in the case below, the Court deemed it ok to provide evidence against yourself via field sobriety tests. While the court attempted to explain it away, it is difficult to explain how providing evidence against yourself is not being a witness against yourself.
The case we are discussing is State v. Maze in 16 Kan.App.2d 527, 825 P.2d 1169 (1992). In this case, the Kansas Court of Appeals affirmed a conviction of DUI, holding sobriety testing, including recitation of the alphabet, is not testimonial communication, and a Miranda warning is not required. In reaching its decision, the Court considers the U.S. Supreme Court decision of Pennsylvania v. Muniz 496 U.S 582 (1990), and determines that while the decision considered recitation of the alphabet, it did not exclude it from sobriety testing. The Court then held that even though there was both an administrative suspension of a driver's license and a present criminal case, there was no violation of the double jeopardy clause.
As a DUI lawyer fighting for the rights of clients is paramount. However, being a
drunk driving attorney is a major challenge when dealing with courts that are quick to erode Constitutional protections when it comes to drinking and driving charges.
The Frye test isn't only for criminal cases, but also applie to civil cases, such as personal injury. For example, if you were injured by a drunk driver in Kansas, your personal injury lawyer would likely required to satisy the Frye test if you wish to put on HGN evidence.