Many lawyers handling DUI cases have, for a very long time, have given up on attacking the admissibility of clients' refusal to submit to field sobriety tests in DUI case. There is a good reason for that: every objection raised to the admissibility of refusal of field sobriety tests in Georgia DUI cases has been promptly rejected by the Georgia Court of Appeals. That being said, each of the cases below involve an objection based upon the 5th Amendment (right to remain silent and freedom from self-incrimination). I believe that we should have been approaching this issue under the 4th Amendment and the very strong case law that already exists in Georgia that prohibits comment upon the refusal to consent to a search (when a specific statutory authorization for the comment does not exist).
EXISTING CASE LAW THAT PERMITS USE OF A REFUSAL OF FIELD SOBRIETY TEST AS EVIDENCE IN A GEORGIA DUI CASE
Below are some of the cases that the State will rely upon in support of the proposition that a refusal to submit to field sobriety tests is admissible and proper argument in the case:
Evidence that an accused, who was not in custody at the time, refused to take field sobriety tests is admissible in a trial for DUI.
Bravo's challenges to this evidence as violative of his right to remain silent as set forth in the Fifth Amendment, the Georgia Constitution, or OCGA § 24-9-20(a) are ineffectual since he was not under arrest and therefore the protections afforded by these provisions did not attach.
Bravo v. State, 249 Ga. App. 433, 434, 548 S.E.2d 129, 130-31 (2001)
“As a general rule, no Miranda warnings are required while the investigating officer conducts preliminary questioning or field sobriety tests or advises a defendant of his right to an independent test. See Keenan v. State, 263 Ga. 569, 572(2), 436 S.E.2d 475 (1993); State v. Whitfield, 214 Ga.App. 574(1), 448 S.E.2d 492 (1994)…. [B]ecause state law affords greater protection against self-incrimination than the federal constitution, after arrest,Miranda warnings must precede questioning during field sobriety tests. State v. O'Donnell, 225 Ga.App. 502, 503(1), 484 S.E.2d 313 (1997); OCGA § 24–9–20.” (Emphasis supplied.) State v. Warmack, 230 Ga.App. 157, 158, 495 S.E.2d 632 (1998). OCGA § 24–9–20(a) provides: “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.” However, such rights do not come into play until after a defendant has been arrested. As Turner was not under arrest until after she refused to submit to the alco-sensor and HGN tests, the trial court properly admitted evidence of such refusals and evidence of her failure of the alphabet and counting tests.
Turner v. State, 233 Ga. App. 413, 416, 504 S.E.2d 229, 233 (1998)
Forsman contends that the trial court's admission of evidence regarding his refusal to perform additional field sobriety tests after the HGN violated his constitutional rights against self-incrimination under the Georgia Constitution. See Ga. Const. of 1983, Art. I, Sec. I, Par. XVI. However, it is undisputed that Forsman was not in custody at the time of his HGN test or at the time of his refusal to take additional field sobriety tests. Officer Pulliam pulled Forsman over on the basis of the traffic offenses and was entitled to temporarily detain Forsman while he determined the nature of the situation and conducted field sobriety tests. Daugherty v. State, 182 Ga.App. 730, 731(2), 356 S.E.2d 902 (1987). “Such detentions do not trigger the requirements of Miranda v. Arizona[, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1996)]. [Cit.]” Lankford v. State, 204 Ga.App. 405, 406(2), 419 S.E.2d 498 (1992). Since Forsman was not arrested until after he failed the HGN and refused to take additional field sobriety tests, there was no violation of his constitutional right against self-incrimination. Id. at 407, 419 S.E.2d 498. Accordingly, the evidence of Forsman's refusal was admissible and there was no error.
Forsman v. State, 239 Ga. App. 612, 613, 521 S.E.2d 410, 412 (1999).
Each of the cases cited above were decided by the Georgia Court of Appeals, but it is not clear what how those opinions can be reconciled with the Georgia Supreme Court's decision in Mackey(below):
A defendant's refusal to consent to a warrantless search of his vehicle or other property is quite a different issue. A refusal of permission to search is analogous to the assertion of the privilege against self-incrimination. It is forbidden to “parade [a witness] in front of the jury for the sole purpose of having him invoke the Fifth Amendment. [Cit.]” Sweat v. State, 226 Ga.App. 88, 89(2), 485 S.E.2d 259 (1997). By analogy, an individual should be able to invoke his Fourth Amendment rights without having his refusal used against him at trial. Moreover, the legislature has not yet stated that such a refusal is admissible against a defendant. Mackey's refusal to consent to the search cannot be used as evidence of guilty knowledge. Since the other evidence alone is insufficient to support Mackey's conviction for possession of cocaine, his conviction must be reversed.=
Mackey v. State, 234 Ga. App. 554, 555, 507 S.E.2d 482, 484 (1998).
This is an issue that needs to re-visited.
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