dissenting. The Court is called upon to decide whether a defendant’s Fifth Amendment rights as described in Miranda v. Arizona, 384 U.S. 436 (1966), were violated when he was in custody, had indicated his desire to not answer questions, and was asked, prior to the administration of an evidentiary breath test, if he had burped. I believe the question is purely investigative and aimed at obtaining a testimonial response that will assist in proving the element of intoxication and, coming as it did after the defendant had invoked his right to remain silent, it violated his Fifth Amendment right against self-incrimination. Therefore, his answer should be suppressed.
As the majority notes, the Self-Incrimination Clause of the Fifth Amendment is not necessarily implicated every time a person suspected of criminal activity is compelled in some way to cooperate in generating evidence that later may be used against him. The privilege only protects the accused from being compelled to provide evidence that is testimonial or communicative in nature. See Schmerber v. California, 384 U.S. 757, 761 (1966). To be testimonial, an accused’s communication must, “explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988).
The privilege, however, does not protect a suspect from being compelled by the State to produce “real or physical evidence.” Schmerber, 384 U.S. at 764.1 There are other exceptions to the privilege. In addition to a “routine booking question” exception to the Miranda rules,2 as set forth in Pennsylvania v. Muniz, carefully scripted inquiries or instructions on how to perform field sobriety tests do not violate a suspect’s Fifth Amendment rights when they are *126not designed to elicit incriminating evidence, and are “attendant to” an established police procedure. 496 U.S. 582, 603-04 (1990). For example, when an officer reads the carefully scripted instructions on Vermont’s implied consent law to an arrestee, the instructions do not constitute “interrogation” and the simple inquiry, “do you understand these instructions?,” does not call for an incriminating response.
I disagree, however, with the majority holding that the “burp” question is in the nature of limited and carefully scripted instructions to the accused concerning the taking of a breath test. While the majority finds the question to be a legitimate component of an evidentiary breath test, intended “to protect against an erroneous result,” I believe the interrogatory is designed to bolster the quality of evidence against the suspect and, thus, calls for an incriminating response.3
The holding of Muniz does not support the majority’s treatment of the “burp” question. The incriminating utterances defendant sought to suppress in Muniz, made during the physical sobriety tests, were voluntary and not elicited in response to questions from the processing officer. Muniz’s statements were non sequiturs; they were not responsive to the instructions being given.4 Therefore, the Court found that the absence of Miranda warnings did not require suppression of the statements. See Muniz, 496 U.S. at 604-05. In contrast, the response defendant seeks to suppress, in the present case, was compelled by a direct question, “Did you burp?” His answer was not a spontaneous, voluntary statement.
When analyzing whether a question asked by a law enforcement officer is interrogative, courts have considered the totality of the circumstances surrounding the officer’s actions. In United States v. Casiano, the court reasoned that while “‘[t]he subjective intent of the agent is relevant but not conclusive,”’ “‘the relationship of the question asked to the crime suspected is highly relevant’ ” in making *127such a determination. 862 F. Supp. 52, 54 (S.D.N.Y. 1994) (quoting United States v. Gonzalez-Mares, 752 F.2d 1485, 1489 (9th Cir. 1985)); see also State v. Walton, 824 P.2d 533, 535 (Wash. Ct. App. 1992). Thus, when the question posed has relevance to the suspected crime, seemingly innocuous questions may constitute custodial interrogation, and courts have suppressed both questions and answers when Miranda warnings were lacking or where invocation of the Fifth Amendment right was not honored by law enforcement.
For example, in State v. Wiberg, 296 N.W.2d 388 (Minn. 1980), police came to a woman’s home to search for 550 stolen firearms. Miranda warnings were given and the woman indicated, in the presence of the questioning officer, that she wished to remain silent. Disregarding her invocation, the officer picked up a purse and asked her if it was her purse. See id. at 390. She admitted that it was. In the purse was found a pistol and some gun literature. Her response was admitted at trial over her objection. On appeal, the court found the officer’s question violated defendant’s constitutional rights and, as a result, it was error for the trial court to admit evidence of her response to the question of ownership. See id. at 391; see also People v. Mack, 895 P.2d 530 (Colo. 1995) (in prosecution for unlawful distribution and sale of cocaine, question — “Is this your key” — which referred to a hotel room key and posed to suspect believed to be dealing drugs from same hotel room, was custodial interrogation without benefit of Miranda warning, and suspect’s answer to question was suppressed); Commonwealth v. Woods, 645 N.E.2d 1153, 1157 (Mass. 1995) (noting that Miranda warning is required before asking defendant about employment status in a drug case where defendant’s statement that he is unemployed may prove incriminating because defendant possessed substantial amount of cash at time of arrest); State v. Stevens, 511 N.W.2d 591, 599 (Wis. 1994).
In State v. Chihanski, 540 N.W2d 621 (N.D. 1995), defendant in a drunk driving case argued that the trial court erred when it denied her motion to suppress a statement made without benefit of Miranda warnings. Erior to taking a breath test, defendant was asked have you put “anything in [your] mouth since the time of arrest,” to which she responded “no.” Id. at 623. The court found that substantial evidence existed, without Chihanski’s statement, to support the officer’s determination that she had not eaten, drunk, or smoked for twenty minutes before taking the breath test. See id. at 624. Thus, the court held that even if the statement was testimonial, requiring Miranda warnings, admitting it in the absence of the warnings was harmless error. See id.
*128In this case, defendant was given Miranda warnings — he was told that he had a right to remain silent. He indicated that he did not want to answer questions and, therefore, exercised his right to cut off questioning. See Miranda, 384 U.S. at 474 When a defendant exercises this right, the police must scrupulously honor such a request. See Michigan v. Mosley, 423 U.S. 96, 103 (1975) (“A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt ‘fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . . .’”) (quoting Miranda, 384 U.S. at 479). In this case, as in the cases cited above, defendant’s attempt to cut off questioning was not scrupulously honored.
When a law enforcement officer asks a defendant the “burp” question during processing for DUI, the officer has already determined that there was probable cause to believe the defendant was intoxicated while operating a motor vehicle — through observation of erratic operation of the vehicle; through the detection of the odor of intoxicants, bloodshot or watery eyes, or slurred speech; from results of an alco-sensor; or from a suspect’s spontaneous utterances. The question — “did you burp?” — is not a preamble to a lesson in manners. When the question is asked, the officer is beyond the initial determination that a crime has been committed and is in the process of capturing evidence to use against the defendant in a criminal prosecution.
The “burp” question that was posed to defendant came after a preliminary investigation, after arrest, after defendant invoked his Fifth Amendment right of silence, and without any subsequent express waiver of that right. The question was directly related to the charge confronting defendant. The question was not “innocent of any investigative purpose.” United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986). By answering that he had not burped in the fifteen minutes preceding the breath sample, defendant communicated an assertion of fact which contributes to the evidentiary foundation of the State’s case against him. His answer discloses information that “could be used in a criminal prosecution or could lead to other evidence that might be so used.” Kastigar v. United States, 406 U.S. 441, 445 (1972). In other words, he was asked, in violation of his constitutional right, *129for information to assist in developing credible evidence intended to be used against him to establish his degree of intoxication.5
While it may increase the observational responsibilities of the processing officer, the State must “‘shoulder the entire load’” in establishing the reliability of the evidence test to be used against a defendant. Miranda, 384 U.S. at 460 (quoting 8 J. Wigmore, Evidence § 2251, at 317 (McNaughton rev. 1961)). The defendant should not be compelled to provide testimonial evidence that the test results were uncontaminated.
Therefore, while I agree with the majority’s conclusion that introduction of defendant’s de facto refusal to perform the HGN test does not violate his constitutional rights, I would affirm the trial court’s suppression of the “burp” question.
While a suspect can be required to provide real or physical evidence, such evidence must be obtained in a manner that does not entail any testimonial act on the part of the suspect. In Schmerber v. California, for example, the Court held that the police could compel a suspect to provide a blood sample because the compulsion was outside of the Fifth Amendment’s protection: “Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis.” 384 U.S. 757, 765 (1966).
Examples of permissible routine booking questions include questions regarding an arrestee’s name, address, height, weight, eye color, date of birth, and current age. See Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990).
By incriminating response, I “refer to any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial.” Muniz, 496 U.S. at 615 (Marshall, J., concurring). For purposes of exclusion, the court may draw “‘no distinction . . . between inculpatory statements and statements alleged to be merely “exculpatory.”’” Id. (quoting Miranda v. Arizona, 384 U.S. 436, 476-77 (1966)).
At Muniz’s trial in the Pennsylvania Superior Court, evidence was adduced showing that during the course of the three sobriety tests, Muniz attempted to explain his difficulties in performing the various tasks and often asked for further clarification of the tasks he was to perform. During the explanation of the implied consent law, he made several inquiries about the legal implications of the law and said he’d recently finished a license suspension and did not want his license suspended again. See Pennsylvania v. Muniz, 547 A.2d 419, 423 (Pa. Super. Ct. 1988).
Because it is not the defendant’s burden to prove his innocence, I am not persuaded by the majority’s conclusion that the accuracy of the statutorily required breath test is an objective, which is as significant to the suspect as it is to the State.