State v. O'DONNELL , 225 Ga. App. 502 ( 1997 )

484 S.E.2d 313 (1997) 225 Ga. App. 502

The STATE
v.
O'DONNELL.

No. A96A1908.

Court of Appeals of Georgia.

March 17, 1997.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Charles E. Rooks, Jeffrey J. Connor, Assistant District Attorneys, for appellant.

Germano, Kimmey & Cheatwood, John L. Kimmey, III, Atlanta, for appellee.

POPE, Presiding Judge.

Defendant Scott O'Donnell was indicted for driving under the influence of alcohol (OCGA § 40-6-391), leaving the scene of an accident (OCGA § 40-6-270), and causing serious injury by vehicle (OCGA § 40-6-394). The trial court granted defendant's motions to suppress or exclude (1) his statement to Officer Moore that he had had several drinks, (2) the results of defendant's field sobriety tests, and (3) the results of his breath test. The trial court properly suppressed the statement and the field test results because the officer failed to inform defendant of his right not to incriminate himself ("his Miranda rights"), and properly excluded the breath test results because the implied consent warning the officer gave defendant prior to the test was not correct. Accordingly, we affirm.

At approximately 4:00 a.m. on April 30, 1994, defendant was involved in an accident in which a person in another vehicle was seriously injured. Defendant left the scene, and was almost immediately involved in a second accident. He was arrested at the scene of the second accident and returned in the back of a police car to the scene of the first. There, Officer Moore talked to him. The officer told defendant he smelled alcohol and asked defendant if he had been drinking. Defendant said yes, he had had several drinks, but not since 8:00 the prior evening. Officer Moore then asked defendant to get out of the car and perform several field sobriety tests, which he did. The State stipulated that defendant was in custody and under arrest when Officer Moore talked with him, but neither Moore nor any other officer told defendant about his rights under Miranda.

Officer Moore also gave defendant a breath test. Prior to giving defendant the test, Moore read him an implied consent warning; but it was a version of the warning we have rejected as inadequate because it did not inform defendant that he had the right to have another test done by a qualified person of his own choosing. State v. Causey, 215 Ga.App. 85, 86, 449 S.E.2d 639 (1994). In the State's proffer of evidence, the officer acknowledged he did not give the correct warning at the proper time, but said that after he gave defendant the breath test, he asked defendant if he wanted another test of his own choosing.

1. The State first argues that the trial court erred in suppressing defendant's statement and the results of the field sobriety tests because Miranda warnings are not necessary in the context of an initial on-site investigation of a traffic incident. We have indeed held that Miranda warnings generally are not necessary for roadside questioning during the routine investigation of a traffic incident. See, e.g., Daugherty v. State, 182 Ga.App. 730, 731(2), 356 S.E.2d 902 (1987). But this is because a reasonable person questioned during this type of investigation would consider his detention only temporary. See Hughes v. State, 259 Ga. 227, 228(1), 378 S.E.2d 853 (1989). Thus, Miranda warnings generally are not necessary during the initial on-site investigation because the detainees generally are not in custody or under arrest. See Coates v. State, 216 Ga.App. 93, 95(7), 453 S.E.2d 35 (1994); Crum v. State, 194 Ga.App. 271, 272, 390 S.E.2d 295 (1990); Montgomery v. State, 174 Ga.App. 95(1), 329 S.E.2d 166 (1985). Unlike most cases involving this issue, however, it is undisputed in this case that defendant was under arrest when Officer Moore questioned him and had him perform field sobriety tests; and where a defendant is under arrest, a Miranda warning must be given regardless of whether the questioning occurs in the context of a routine investigation of a traffic incident. See Lebrun v. State, 255 Ga. 406, 407(3), 339 S.E.2d 227 (1986).

2. The State further argues that even if failure to give the Miranda warning precludes use of the custodial statement Officer Moore elicited from defendant, it should not render the circumstances and results of the field sobriety tests inadmissible. In Hughes v. State, the Supreme Court of Georgia held that the results of field sobriety tests given without the benefit of Miranda warnings need not be excluded under the Fifth Amendment to the United States Constitution, as the results of such tests are not evidence of a testimonial or communicative nature. 259 Ga. at 228(2)(b), 378 S.E.2d 853 (1989). The Supreme Court in Hughes explicitly left open the possibility that the results of sobriety tests given without Miranda warnings might nonetheless be inadmissible under OCGA § 24-9-20(a), however, noting that the defendant in Hughes based his motion only on federal law, and not on the Georgia statute. Id. at 228, 378 S.E.2d 853.

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.

In almost all cases involving motions to suppress field sobriety tests, we have not needed to address this question because we have determined that the detainee had not been arrested when he performed the field sobriety tests. See, e.g., Crum, 194 Ga.App. at 272, 390 S.E.2d 295. But in the one case where, as here, the defendant had clearly been arrested at the time he took the tests, we affirmed the trial court's grant of the defendant's motion to suppress based on the officer's failure to warn him of his rights. See State v. Whitfield, 214 Ga.App. 574(3), 448 S.E.2d 492 (1994).

We note that in Smith v. State, 202 Ga. App. 701, 702(1), 415 S.E.2d 495 (1992), we stated that field sobriety tests were not inadmissible under the Fifth Amendment, and went on to say that "[t]here is no reason this holding should not extend to a claim of violation of OCGA § 24-9-20." In Smith, we relied on Classic Art Corp. v. State, 245 Ga. 448, 265 S.E.2d 577 (1980), in which the Supreme Court of Georgia said that the applicability of OCGA § 24-9-20 is governed by the same standards as the Fifth Amendment, rather than on Montgomery, Creamer, and Armstead. But this reliance was misplaced, as Classic Art did not address the issue involved in Creamer and in this case: Is a particular type of evidence covered by the prohibition against compelled self-incrimination? Instead, Classic Art involved the question of whether a corporation, rather than an individual, can avail itself of the privilege against self-incrimination (the answer to which is "no" under both federal and state law). The language quoted from Smith above was unnecessary, since we had already concluded that the defendant was not in custody when he took the sobriety tests. In order to avoid confusion in this area of the law, however, this language indicating that field sobriety tests performed by an arrestee without a warning would be admissible under OCGA § 24-9-20 is disapproved.

3. The State also contends that since the officer asked defendant after his breath test whether he wanted another test of his own choosing, the officer substantially complied with the requirements of OCGA §§ 40-5-67.1 & 40-6-392, and the breath test should be admitted. But substantial compliance with these Code sections is not sufficient. The officer must give the correct warning, see State v. Causey, 215 Ga.App. 85, 449 S.E.2d 639, and he must give it when he arrests the defendant for DUI unless there are good reasons not to. Perano v. State, 250 Ga. 704, 708, 300 S.E.2d 668 (1983); Clapsaddle v. State, 208 Ga.App. 840, 841(1), 432 S.E.2d 262 (1993). As the officer in this case did not give the correct warning at the time of arrest and the circumstances did not warrant a delay, the trial court properly ruled that the results of the breath test were inadmissible.

Judgment affirmed.

ANDREWS, C.J., McMURRAY and BIRDSONG, P. JJ., and BEASLEY, JOHNSON, BLACKBURN, SMITH and RUFFIN, JJ., concur.