Often times, the best means of defending a DUI charge is excluding from the trial evidence which is obtained unlawfully. One issue that must always be considered in evaluating the field sobriety test evidence in a DUI case is whether the evidence was obtained through valid consent by the suspect. Was the DUI suspect coerced into submitting to the tests, or was the suspect in custody prior to the administration of the tests? The motion below addresses these issues:
BENCH BRIEF IN SUPPORT OF MOTION TO EXCLUDE EVIDENCE AND STATEMENTS
AFTER THE OFFICER'S REQUEST FOR A PRELIMINARY BREATH TEST
Officer Atlanta DUI's initial interaction with the Defendant began with a show of force. When Officer Atlanta DUI initiated the stop upon the Defendant's vehicle, the Defendant signaled that he was progressing towards the right shoulder of I-85 Northbound. Officer Atlanta DUI accelerated his patrol car in an effort to cut off and “guide” the Defendant to the guard rail area. On the video recording of this incident, Officer Atlanta DUI is heard saying, “Go ahead and pull over. Pull over before I ram your car.” From the time that Officer Atlanta DUI initiated his blue lights to the time that the Defendant stopped, the Defendant never indicated in his actions any attempt to avoid Officer Atlanta DUI.
Officer Atlanta DUI then stated, “Turn the car off. Turn the car off.” In a highly unusually order, Officer Atlanta DUI then commanded the Defendant to take his keys out of the ignition and “[d]rop the keys out of the window.” The Defendant was literally asked to drop the keys to his vehicle outside of his car.
Officer Atlanta DUI next proceeded to approach the Defendant's vehicle and directed the Defendant to exit his vehicle. At the rear of the Defendant's car, Officer Atlanta DUI began to question the Defendant about his speed and whether the Defendant had been drinking. After this series of statements by the officer, Officer Atlanta DUI directs the Defendant to stand right there and do not move. Officer Atlanta DUI then proceeded to go back to the Defendant's drivers side door and pick up the Defendant's keys.
At 00:24:21 on the video recording, Officer Atlanta DUI informed the Defendant that “I'm going to get a sample of your breath.” Officer Atlanta DUI did not ask the Defendant if he wanted to submit to the preliminary breath test. Then, Officer Atlanta DUI stated, “Only had 1 beer, right? I sure hope so. Because the way you are driving is terrible.” The Defendant and Officer Atlanta DUI then engage in a conversation about the Defendant's driving, and the Defendant can be to ask Officer Atlanta DUI, “Why you yelling at me?” At 00:26:28 on the video recording, Officer Atlanta DUI begins administering the preliminary breath test, and tells the Defendant to “blow, blow, blow.” Then, he had the Defendant perform the preliminary breath test again, and Officer Atlanta DUI stated “You had 1 beer, right? That does not look like 1 beer.” The Defendant was never issued Miranda warnings during Officer Atlanta DUI's investigation of him, and subsequent to the preliminary breath test, the Defendant was asked to perform the HGN test, the walk-and-turn test, and the one-leg stand test.
Article 1, Section 1, Paragraph XVI of the Georgia Constitution provides, “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” It is the well-recognized law of this state that Article 1, Section 1, Paragraph XVI of the Georgia Constitution protects criminal defendants from evidence secured by field sobriety tests which are performed as a result of compulsion. Montgomery v. State, 174 Ga. App. 95, 96, 329 S.E.2d 166 (1985).
O.C.G.A. § 24-9-20(a) states: “No person who is charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction shall be compellable to give evidence for or against himself.” O.C.G.A. § 24-9-20(a) protects a defendant against the introduction of field sobriety evidence secured without Miranda warnings when the defendant is in custody:
In Montgomery v. State, we stated that OCGA § 24-9-20(a) “is more protective of the individual's right than the Fifth Amendment, which covers only a defendant's statements, since the Georgia statute has been construed to limit the State from forcing an individual to present evidence, testimonial or real.” (Emphasis in original.) Id. at 96(1), 329 S.E.2d 166, citing Creamer v. State, 229 Ga. 511(3), 192 S.E.2d 350 (1972). This statement in Montgomery was dicta, since we held that the statute did not apply because the defendant in that case had not yet been arrested at the time he took the sobriety tests. But the reasoning is nonetheless persuasive, based on the Supreme Court of Georgia's holding in Creamer v. State: Under the constitutional and statutory law of Georgia, which “has long granted more protection to its citizens than has the United States,” Creamer, 229 Ga. at 515(3), 192 S.E.2d 350, an arrestee may not be compelled to do an act which is incriminating, but he may be compelled to submit to acts by others (i.e., fingerprinting, identification). Id. at 516-518, 192 S.E.2d 350 (applying this standard, the Supreme Court held in Creamer that the defendant could be compelled to submit to a surgical operation to have a bullet removed from his body). We applied the Creamer standard in State v. Armstead, 152 Ga.App. 56(1), 57(2), 262 S.E.2d 233 (1979), holding that even though a defendant can be compelled to give a handwriting sample under the Fifth Amendment, he cannot be compelled to do so under Georgia law, since a handwriting sample requires the defendant to do an act rather than submit to an act. Like providing a handwriting sample, performing field sobriety tests requires a defendant to act rather than submit to acts. Thus, an arrestee must be warned of his right against self-incrimination before he is asked to take these tests.
State v. O'Donnell, 225 Ga. App. 502, 504-505, 484 S.E.2d 313 (1997).
In accordance with Hughes v. State, 259 Ga. 227, 378 S.E.2d 853 (1989), Officer Atlanta DUI's (1) act of cutting the Defendant off and forcing him to the guard rail while driving, (2) ordering the Defendant to drop his keys on the ground, (3) retrieving the Defendant's keys, and (4) stating to the Defendant that the results of the preliminary breath test did not look like 1 beer and showing the numerical value to the Defendant rendered the Defendant in custody and Miranda warnings must have preceded the request for a preliminary test. In State v. Hughes, 189 Ga. App. 671, 377 S.E.2d 192 (1988), the defendant was stopped by an off-duty officer after the officer observed him commit several traffic violations. The off-duty officer asked the defendant to produce his identification and the defendant did so. The off-duty officer requested that by-standers call 911 and ask for officer assistance. Assisting officers arrived within 3 or 4 minutes of the call. During the time prior to the other officers arrival, the defendant told the off-duty officer that he was going to drive away, and the off-duty officer told him that he could not. One of the assisting officers asked that the defendant submit to field sobriety testing. The defendant was not administered Miranda warnings prior to submitting to field sobriety tests. Id.
The trial court in Hughes granted the defendant's motion to suppress and motion in limine and held that the off-duty officer “effected an arrest of [appellee] when he informed [appellee] that he could not leave the scene of the intial stop.” Id. Accordingly, the trial court excluded evidence of the conversation between the defendant and the off-duty officer and field sobriety test evidence. The Georgia Court of Appeals reversed the trial court's order granting the motion to suppress and motion in limine. Id. The Georgia Supreme Court reversed the Court of Appeals and affirmed the trial court's order. Hughes, 259 Ga. 227, 378 S.E.2d 853. The Georgia Supreme Court held:
The test for determining whether a person is “in custody” at a traffic stop is if a reasonable person in the suspect's position would have thought the detention would not be temporary. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). Because there is evidence in the record to support the trial court's determination that Hughes was arrested when he was told he was not free to leave, we will not disturb it. State v. Louis, 185 Ga.App. 529, 364 S.E.2d 896 (1988). Therefore, we reverse the Court of Appeals' determination that this was not an arrest.
Id. at 227.
The Hughes Court went on to recognize that the Fifth Amendment of the United States Constitution, which was the basis for the defendant's motion to suppress and motion in limine, did not render the alphabet test and the field sobriety test inadmissible because they are not evidence of a “testimonial or communicative nature.” Id. The Hughes Court left open the question of whether the Georgia Constitution or O.C.G.A. § 24-9-20 were applicable to field sobriety evidence. In State v. O'Donnell, 225 Ga. App. 502, 484 S.E.2d 313 (1997), the Court of Appeals held that O.C.G.A. § 24-9-20 does apply to field sobriety evidence.
When the officer in this case (1) cut the Defendant off and forced him to the guard rail while driving, (2) ordered the Defendant to drop his keys on the ground, (3) retrieved the Defendant's keys, and (4) stated to the Defendant that the results of the preliminary breath test did not look like 1 beer and showed the numerical value to the Defendant, the Defendant was placed in custody. Because the defendant allegedly refused the request for a preliminary breath test and made incriminating statements following the officer's statements placing the defendant in custody, Miranda warnings should have been given to the Defendant prior to the request for a preliminary breath test, pursuant to Montgomery and O'Donnell. Accordingly, all statements and acts undertaken by the Defendant subsequent to the statements placing him in custody by the officer should be excluded from the trial of this case.
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