Here is a draft of a brief that I have prepared on this issue:
The Defendant in the above-styled case, by and through the undersigned counsel, and respectfully moves this Honorable Court to exclude from evidence the results of the state-administered breath the Defendant submitted to after his arrest for DUI. First, the Defendant's submission to the state-administered breath test should be excluded because the in-custody request that the Defendant submit to a breath test, which is protected by Paragraph XVI of the Georgia Constitution, was not preceded by a Miranda rights advisement. Second, the implied consent advisement provided to the Defendant is materially and substantially misleading because it suggests that if the Defendant exercised his constitutional right to refuse the state-administered breath test, such refusal may be used against his at trial. That statement within the implied consent advisement is misleading and it reasonably could have induced the Defendant's submission to the state-administered breath test. Both of these separate grounds arose as a result of the Georgia Supreme Court's decision in Olevik v. State, No. S17A0738, 2017 WL 4582402 (Ga. Oct. 16, 2017). In furtherance of this motion, the Defendant respectfully shows the Court the following:
THE POST-ARREST REQUEST THAT THE DEFENDANT SUBMIT TO AN ACT PROTECTED BY PARAGRAPH XVI OF THE GEORGIA CONSTITUTION MUST HAVE BEEN PRECEDED BY A MIRANDA RIGHTS ADVISEMENT.
This case does not involve a serious injury by vehicle or vehicular homicide allegation. Therefore, the Defendant must have been in custody prior to the implied consent advisement. Hough v. State, 279 Ga. 711, 716, 620 S.E.2d 380, 385 (2005)(“[W]e must find, employing the standard rules of statutory construction, that a suspect who is not involved in a traffic accident resulting in serious injuries or fatalities must be under arrest before implied consent rights are read to him”). If the Defendant was not under arrest before the implied consent rights were read to him, the implied consent was untimely and must be excluded in this on those grounds. If the Defendant was under arrest at the time that a breath test was requested of him, Paragraph XVI of the Georgia Constitution provides protection to him. See, Olevik v. State, No. S17A0738, 2017 WL 4582402, at *12 (Ga. Oct. 16, 2017)(“Accordingly, we overrule Klink and other cases to the extent they hold that Paragraph XVI of the Georgia Constitution does not protect against compelled breath tests or that the right to refuse to submit to such testing is not a constitutional right”). Because he was under arrest that the time of the request that he perform an incriminatory act, the request must have been preceded by a Miranda rights advisement.
Under Paragraph XVI of the Georgia Constitution, when a defendant is in custody and he is requested to perform an incriminatory act,
Price challenges on state law grounds the admission of testimony regarding the results of a field sobriety test because she was not first given Miranda 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)(footnotes and citations omitted).
Prior to Price, the Court of Appeals recognized that the self-incrimination provision of the Georgia Constitution and then O.C.G.A. § 24-9-20 precluded the admission of field sobriety evidence performed upon a suspect in custody with Miranda warnings being given to the suspect:
Defendant in this case does rely on OCGA § 24–9–20(a); field sobriety tests given to a person under arrest, without giving him or her a Miranda warning first, are inadmissible under this Code section. See Montgomery, 174 Ga. App. at 95(1), 329 S.E.2d 166. 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, 504–05, 484 S.E.2d 313, 315–16 (1997); see, State v. Coe, 243 Ga. App. 232, 234, 533 S.E.2d 104, 106 (2000), overruled by Olevik v. State, No. S17A0738, 2017 WL 4582402 (Ga. Oct. 16, 2017).
In the context of a preliminary breath test, the Georgia Supreme Court has recognized that if a defendant is in custody, it is required that he be given a Miranda rights advisement prior to the request for a test: “Since appellant was not in custody, there was no requirement that the request that he undergo the alco-sensor test be preceded by Miranda warnings.” Keenan v. State, 263 Ga. 569, 571, 436 S.E.2d 475, 477 (1993).
Prior to Olevik, State v. Coe, 243 Ga. App. 232, 234, 533 S.E.2d 104, 106–07 (2000), addressed a trial court's decision excluding a state-administered breath test based in the failure to provide the defendant with a Miranda rights advisement:
But neither due process nor the Georgia privilege against self-incrimination codified at OCGA § 24–9–20(a) is implicated by the choice granted by the Georgia Implied Consent Statute whether to submit to a chemical test of bodily substances such as blood, breath, or urine. The distinction lies between performing incriminating acts, such as field sobriety tests, and submitting to breath, blood, or urine tests. The State “cannot force a defendant to act, but [nevertheless] can, under proper circumstances, produce evidence from his [body].” Thus, an arrestee is not, under Georgia constitutional or statutory law, entitled to Miranda warnings before deciding whether to submit to the State's request for an additional test of breath, blood, or urine.
State v. Coe, 243 Ga. App. 232, 234, 533 S.E.2d 104, 106–07 (2000)(footnotes and citations omitted), overruled by Olevik v. State, No. S17A0738, 2017 WL 4582402 (Ga. Oct. 16, 2017). Coewas decided in error in that it failed to appreciate that the Georgia Constitution's self-incrimination provision does, in fact, apply to the submission to a breath test. If the Court of Appeals in Coe had properly recognized that a breath test was an act protected by the self-incrimination provision of the Georgia Constitution (Paragraph XVI of the Georgia Constitution), it would have reached the correct result, which the trial court did, that Miranda warnings are required prior to the post-arrest request for a breath test.
It is a well-established principle of Georgia law that the request for the performance of an act protected by Paragraph XVI of the Georgia Constitution must preceded Miranda warnings if the suspect is in custody at the time of the request. The Defendant in this case was in custody at the time that that the breath test was requested. The submission to a state-administered breath test is an act that is protected by Paragraph XVI of the Georgia Constitution. The Defendant was not provided Miranda warnings prior to the request for a breath breath. Therefore, the state-administered breath test should be excluded from the evidence in this case.
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