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STATE v. O'DONNELL3/17/1997
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) (
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