Georgia is very different from many other states in that our state Constitution protects against compelled acts in addition to statements. So, the admissibility of field sobriety tests may be contingent upon the reading of Miranda warnings to some people. One of the most common questions that clients ask me is why there were not read Miranda warnings prior to the administration of field sobriety tests. It is a great question, and there are many scenarios where Miranda could become applicable.
The general rule is that Miranda is not applicable to field sobriety tests. So, in order to have field sobriety tests excluded from evidence because Miranda was not read, you are going to need to have some additional facts. You have to show the trial court that prior to submitting to the field sobriety tests, there were some additional facts present that would have caused a reasonable person to believe that their detention would not be temporary.
This post provides relevant portions of the most important Georgia cases on this issue.
Price challenges on state law grounds the admission of testimony regarding the results of a field sobriety test because she was not first given Miranda12 warnings. Decisions of this Court and the court of appeals have routinely held that under Georgia law Miranda warnings must precede a request to perform a field sobriety test only when the suspect is “in custody.” The test of “in custody” is whether a “reasonable person in the suspect’s position would have thought the detention would not be temporary.”14 The evidence in this case was undisputed that Price performed the field sobriety test only after the police officer informed her that the license check showed she had a suspended license, he had a strong impression that she was intoxicated based on the smell of alcohol, she had to steady herself against the car to keep from falling, and he would take her to jail for DUI regardless of whether she performed the field evaluations. Under these circumstances we must conclude that, having been informed that she was going to jail, a reasonable person would have believed that the detention was not temporary. Therefore, the failure to give the Miranda warnings renders evidence regarding the field sobriety tests inadmissible.
Price v. State, 269 Ga. 222, 224–25, 498 S.E.2d 262, 264–65 (1998)
This leaves for decision only whether or not ‘testimony’ as found in the Constitution embraces all kinds of evidence? Fortunately, this court has many times decided that question by holding that the word ‘testimony’ means all types of evidence as the following decisions will illustrate. In Day v. State, 63 Ga. 667(2), it was said: ‘Evidence that a witness forcibly placed defendant’s foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible. A defendant can not be compelled to criminate himself by acts or words.’ At page 669, the clause of the Constitution is quoted, and then it is said: ‘Nor can one, by force, compel another, against his consent, to put his foot in a shoe-track for the purpose of using it as evidence against him on the criminal side of the court.’ Dealing with the same facts this court in Elder v. State, 143 Ga. 363, 85 S.E. 97, followed the ruling in the Day case, supra, and Evans v. State, 106 Ga. 519, 32 S.E. 659.
An extensive discussion of this question is found in Calhoun v. State, 144 Ga. 679, 87 S.E. 893. There the Constitution is quoted and it is then said at page 680, 87 S.E. at page 893: ‘Its prototype is found in the maxim of the common law, ‘Nemo tenetur seipsum accusare,’ that no man is bound to accuse himself of any crime or to furnish any evidence to convict himself of any crime; and this was brought by our ancestors to America as a part of their birthright. Marshall v. Riley, 7 Ga. 367, 370.’ It was then said at page 681, 87 S.E. at page 893 that: ‘The constitutional guaranty protects one from being compelled to furnish evidence against himself, either in the form of oral confessions or incriminating admissions of an involuntary character, or of doing an act against his will which is incriminating in its nature.’ (Italics ours). That opinion recognized the rule then of force that evidence illegally obtained by search was admissible but said it was distinctly different from the rule that any evidence produced by the accused under compulsion was inadmissible.
Aldrich v. State, 220 Ga. 132, 134, 137 S.E.2d 463, 464 (1964)
A second sheriff’s deputy then arrived on the scene. At this point, the first deputy asked Mosley to lean on the bumper of his patrol vehicle while he and the second deputy turned and walked a short distance away to engage in a private discussion. During the deputies’ brief conversation, Mosley began to walk away, and the first deputy directed him back to the bumper of his patrol car. The following conversation then ensued between Mosley and the first deputy:
Deputy: Hey, sir, would you mind voluntarily doing field sobriety for me?
Deputy: You said, no, you don’t want to do field sobriety?
Mosley: Why? I’m not driving.
Deputy: Listen, listen, listen to me—step back and lean on the bumper. Would you mind voluntarily doing field sobriety?
Mosley: Are you saying you are going to arrest me?
Deputy: No, I’m saying I’m going to conduct some field-sobriety test, test your impairment to see if you are safe enough to drive and/or walk away.
Mosley: I’m not going to drive.
Deputy: Listen to me, to drive and/or walk away.
Mosley: Okay. I’ll do it.
This conversation took place less than eight minutes into the encounter.4 The first deputy then conducted field-sobriety tests and **108 arrested Mosley for DUI less safe, in violation of OCGA § 40–6–391(a)(1).
Thereafter, Mosley filed a motion to suppress both the field-sobriety-test results and any subsequent testimonial evidence arguing, inter alia, that he was in custody at the time the tests were conducted and therefore should have been advised of his rights under Miranda v. Arizona5 prior to being subjected to the tests. And after holding a hearing and watching the videotaped evidence from the *238 first deputy’s vehicle-mounted camera, the trial court granted Mosley’s motion to suppress the evidence. Specifically, the trial court held that Mosley was under arrest at the time he agreed to submit to the field-sobriety testing and, therefore, should have first been given his Miranda rights. This appeal by the State follows.6
23456 In Georgia, it is well established that during the course of an investigation, a law-enforcement officer may temporarily detain an individual and that such a detention does not normally trigger the protections of Miranda.7 And with respect to a DUI investigation in particular, Miranda warnings are not required “while an investigating officer conducts preliminary questioning or field sobriety tests.”8Once a DUI suspect is in custody, however, Miranda warnings must “precede further field sobriety tests in order for evidence of the results to be admissible.”9 To that end, when analyzing whether a suspect is in custody, the relevant inquiry is “whether, under the circumstances, a reasonable person would conclude that his or her freedom of action was only temporarily curtailed and that a final determination of his or her status was merely delayed.”10 A reasonable person is “one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.”11 And a detained individual is not under arrest simply because, by leaving, “he could be *239 arrested for violating state law.”12Finally, the subjective belief of an officer that he or she may have probable cause to arrest a suspect is wholly irrelevant in the absence of an overt step to communicate that belief. Indeed, in the absence of an officer making a statement that would cause a reasonable person to believe that he was under arrest—as opposed to being temporarily detained—during an investigation, the officer’s subjective “ belief” that probable cause exists to make an arrest “does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe he was under arrest.”
Applying the foregoing principles to the case sub judice, we conclude that the trial court erred in holding that Mosley was in custody for purposes of Miranda at the time the field-sobriety tests were conducted. The first deputy was responding to a call from a concerned convenience-store clerk. And during his investigation into the reason for the clerk’s call, the deputy observed that Mosley’s car appeared to have been in a recent accident and that Mosley was possibly under the influence of alcohol, which naturally caused the deputy to expand the nature of his investigation.
Additionally, while it is certainly true that Mosley was not permitted to leave the scene during the course of the first deputy’s questioning, there is nothing in the deputy’s words or actions that would cause a reasonable person to conclude that Mosley’s freedom of action was more than temporarily curtailed pending the outcome of the investigation. Indeed, at no time did the deputy tell Mosley that he was under arrest. To the contrary, when Mosley asked the deputy during his investigation whether he was under arrest, the deputy explicitly answered this question in the negative (as noted supra ). Moreover, the deputy never placed Mosley in handcuffs or in the back of the patrol car during his questioning. In fact, the deputy even turned his back on Mosley at one point in his investigation (i.e.,when he stepped away to engage in a private conversation with the second deputy), walking in the opposite direction of Mosley and leaving him standing alone at the back of the vehicle. In sum, our examination of the video convinces us that a reasonable person would conclude that the first deputy was conducting field-sobriety testing for the very purpose of determining whether to take Mosley into custody. Thus, when all of the surrounding circumstances are taken into consideration, we conclude that treatment of this nature cannot fairly be characterized as “ the functional equivalent of [a] formal arrest.”
State v. Mosley, 321 Ga. App. 236, 237–40, 739 S.E.2d 106, 107–09 (2013)
Rowell also raises several arguments regarding the administration of the alco-sensor test, asserting that she was improperly coerced into taking the test without the benefit of a Miranda warning.
Alco-sensor and other field sobriety tests given to a person under custodial arrest are inadmissible where administration of the tests has not been preceded by a Miranda warning. Although a motorist is deprived of his freedom of action during a traffic stop, such a deprivation does not always trigger the rights set forth in Miranda. Instead, 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. Whether one is in custody for Mirandapurposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.
(Footnotes omitted.) State v. Padidham, 310 Ga.App. 839, 840–841, 714 S.E.2d 657 (2011). Moreover, although “under Georgia law, an investigating officer is not required to advise a suspect that his performance of field sobriety tests is voluntary,”1 an officer cannot improperly compel a suspect into submitting to the tests. See generally Aldrich v. State, 220 Ga. 132, 134, 137 S.E.2d 463 (1964). This Court, in fact, specifically looks for an absence **894 of any threat of criminal sanction or any show of force in determining whether field sobriety test evidence is admissible. See Montgomery v. State, 174 Ga.App. 95, 96(1), 329 S.E.2d 166 (1985) (test results admissible where defendant not threatened with criminal sanctions for his failure to perform the tests, was not physically forced to do tests, and no showing of force tantamount to actual use of force, and defendant did not refuse to perform tests). See also Clark v. State, 289 Ga.App. 884, 885–886(2), 658 S.E.2d 372 (2008) (same).
Here, Rowell argues that Hardage’s actions in administering the test constituted improper coercion and/or transformed her detention into a custodial situation for purposes of Miranda. Hardage administered the alco-sensor test after he determined that Rowell had failed the HGN and the one-leg-stand tests. The videotape reflects that as Rowell blew into the alco-sensor device, Hardage urged her *564 repeatedly to “blow, blow, blow.” But her initial attempts failed to achieve a useable reading, and Hardage told her on two occasions that he would take her to jail if she did not properly blow into the device. At trial, Hardage testified that Rowell was not performing the test as instructed, and he was intending to inform her that if she did not perform it correctly, he would take her to jail to perform the state-administered chemical test.
From our review of the videotape, we conclude the trial court could have properly interpreted Hardage’s repeated commands to “blow, blow, blow” as instructing her as to the length of her breath and not as an attempt to force her to submit to the test. But Hardage’s statements that he would take Rowell to jail if she did not properly perform the test are more troubling.
In Leiske v. State, 255 Ga.App. 615, 565 S.E.2d 925 (2002), the defendant argued that the results of his state-administered chemical test were not admissible because his consent was not voluntary based upon the officer’s indication that he would be jailed if he did not submit to the tests. Although Leiske did not contest the results of his field sobriety tests, the opinion is instructive. At the hearing on Leiske’s motion to suppress, his counsel attempted to elicit testimony from the arresting officer that he told Leiske he would take him to jail if he did not perform the field sobriety tests. The arresting officer testified, however, that he told Leiske that if he refused the field sobriety tests, he would be forced to read him the implied consent notice, and if he refused that, his license would be suspended, he would be arrested and he would be taken to jail. The officer explained that he simply gave Leiske the options provided him by law. This Court determined that “[t]his colloquy does not establish that [the defendant] was ‘coerced’ into agreeing to any test,” presumably including the field sobriety tests. (Citation omitted; emphasis supplied.) Id. at 616–617(2), 565 S.E.2d 925. Although Hardage may have similarly intended to inform Rowell of her options under the law, that is not what he did. Rather, he simply told her that he would take her to jail if she did not perform the test properly. Thus it is possible to interpret Hardage’s statements as a threat of criminal sanction for failing to properly perform the test.
Nevertheless, we do not believe that Hardage was required to read Rowell a Mirandawarning under the circumstances of this case. This Court has previously held that where a police officer indicates that a defendant is going to jail regardless of his performance on the field sobriety tests, an officer must read the Miranda warning. See Hale v. State, 310 Ga.App. 363, 366(1), 714 S.E.2d 19 (2011) (defendant in custody for purposes of Miranda when officer told him he was going to jail before administering alco-sensor test); State v. Norris, 281 Ga.App. 193, 196, 635 S.E.2d 810 (2006) *565 (defendant’s detention ripened into an arrest when officer told him to turn around and place his hands behind his back, requiring a Miranda warning before administration of alco-sensor test); Price v. State, 269 Ga. 222, 225(3), 498 S.E.2d 262 (1998) (field sobriety test results excluded in absence of Mirandawarning where defendant informed that she was going to jail whether or not she submitted to the tests). But in this case Hardage gave Rowell an option of sorts: perform the test properly or go to jail. Thus a reasonable person in Rowell’s position would have believed that she was not yet under arrest and that her **895 detention still could be only temporary. Moreover, Hardage did not make these statements until Rowell had already consented to and begun performing the test. There was no indication that her initial consent was made under any threat of force or criminal sanction or that she wanted to refuse the test. It was only when she failed to achieve a useable reading that Hardage indicated that he would take her to jail if she did not perform the test correctly. Under these circumstances, no Miranda warning was required and Hardage’s statements cannot be interpreted as coercing her into submitting to the test.
But even if Hardage’s statements could be construed as improperly coercing Rowell into continuing to perform the test, we find that the admission of the test results was harmless error because sufficient evidence existed to establish probable cause for Rowell’s arrest without that evidence. The officer had already observed her abrupt stop at the traffic light, which led her to cross the traffic bar and veer into another lane. After the traffic stop, he smelled the odor of alcohol and observed that she was unsteady on her feet, that her eyes were red and that her speech was somewhat slurred. These factors along with her performance on the two other field sobriety tests were sufficient to give Hardage “knowledge or reasonably trustworthy information sufficient to authorize a prudent person to believe that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.” (Citation omitted.) Cash v. State, 299 Ga.App. 303, 305(2), 682 S.E.2d 607 (2009). Thus, under the totality of the circumstances, the trial court was authorized to conclude that the officer had probable cause to arrest Rowell for driving under the influence of alcohol. Id.; Cann–Hanson v. State, 223 Ga.App. 690, 691(1), 478 S.E.2d 460 (1996) (even in the absence of the field sobriety tests, the officer’s observation of bloodshot, watery eyes and odor of alcohol was sufficient to show probable cause to arrest appellant for driving under the influence). Cf. Trotter v. State, 256 Ga.App. 330, 332(2), 568 S.E.2d 571 (2002) (improperly admitted breath test results harmless where evidence merely cumulative of other evidence *566 of driver’s less safe state).2
Rowell v. State, 312 Ga. App. 559, 563–66, 718 S.E.2d 890, 893–95 (2011)
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