concurring in result.
Once having been placed in custody, which Joanne Chihanski surely was since she had been arrested and taken to the police station, any question asked of her without the warnings prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were asked at the risk that the answers might be suppressed. See, e.g., State v. Fields, 294 N.W.2d 404, 409 (N.D.1980) [“Miranda warnings should be given before questioning a person who is in custody or deprived of his freedom by the authorities for a more serious offense such as driving while intoxicated”]. But, the question of whether or not the person arrested is willing to submit to the request to take a test for intoxication does not impinge on Fifth Amendment rights. Fields, supra. Chihanski had agreed to take the test. I believe the question whether she had put anything in her mouth since the time of arrest was but a part of the question of whether or not she was willing to take the test and also did not implicate the Fifth Amendment. When or if the answer to the question is attempted to be used for purposes other than to demonstrate the fair administration of the test is the time to raise the Miranda issue. Compare State v. Satrom, 524 N.W.2d 92 (N.D.1994); State v. Beaton, 516 N.W.2d 645 (N.D.1994).
I encourage law enforcement officers to give Miranda warnings when placing persons, including persons arrested for DUI, in custody. Any confusion between the warning and the person’s responsibility to answer the request to take the test is easy to avoid. See NDCC § 39-20-01 [officer to inform person charged that refusal to take test will result in license revocation], Hammeren v. North Dakota State Highway Comm’r, 315 N.W.2d 679 (N.D.1982) [officer should inform person arrested that if he refuses to take test, whether by silence or negative answer, that license is subject to suspension]. It is fortuitous for the officers that nothing more than the answer to the question preparatory to administering the test is involved here.
Nevertheless, because I do not believe the answer to this question is testimonial for the purpose of showing fair administration of the test, the majority’s “harmless error” analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) is unnecessary. I concur in the result.
SANDSTROM, J., concurs.