(concurring specially).
I concur with the result reached by the majority, but write separately to emphasize the analytical approach set forth in Pennsylvania v. Muniz, — U.S.-, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990).
The nontestimonial aspects of the videotape do not invoke fifth amendment scrutiny. See Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966); State v. Breeden, 374 N.W.2d 560, 562 (Minn.App.1985). Incriminating communications that are (1) testimonial in nature and (2) elicited during custodial interrogation, must be suppressed in the absence of Miranda warnings. Muniz, — U.S. at-, 110 S.Ct. at 2643.
A communication is testimonial if it explicitly or implicitly relates a factual assertion or discloses information. Id. at-. 110 S.Ct. at 2643. The incriminating inference must be drawn from the testimonial act. Id. at-, 110 S.Ct. at 2644. Custodial interrogation is questioning that the police should know is reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980).
Appellant’s first communicative act on the videotape occurred after the officer said: “Sure got tired all of a sudden, didn’t *151ya?” Appellant responded: “F[ * * * ] you.” The officer’s comment referred to the fact that appellant was repeatedly yawning as the officer prepared to read the Implied Consent Advisory. The majority holds this exchange may violate Miranda, but is harmless beyond a reasonable doubt. I would not reach the question of harmless error because appellant’s response simply conveyed no testimonial information. The response was incriminating only because it revealed anger and poor judgment, which may be indicia of intoxication.
By contrast, the officer in Muniz asked the suspect if he knew the date of his sixth birthday. The suspect stated he did not. The majority held forcing the suspect to incriminate himself by admitting his inability to perform a simple mental calculation violated his fifth amendment rights. Appellant in our case did not admit any incriminating fact.
The next group of communicative acts is appellant’s questions and comments while the officer read the Implied Consent Advisory. Many of the remarks were incriminating because they demonstrated appellant’s mental confusion, but none conveyed testimonial information. More significantly, questioning as to a suspect’s understanding of implied consent law is not interrogation within the scope of Miranda. See Muniz, — U.S. at-, 110 S.Ct. at 2651. The questions are not intended to elicit incriminating testimonial responses. Id.
The final group of communicative acts is appellant’s responses when asked if he would submit to testing. It has long been established that a request to submit to testing is not interrogation under Miranda. South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983). Thus, any responses to such a question are not inadmissible under Miranda. Muniz, — U.S. at-, 110 S.Ct. at 2651.