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MORRISSETTE v. STATE10/22/1997
A jury found Todd Allen Morrissette guilty of two counts of DUI, OCGA § 40-6-391 (a) (1); - (a) (4), and failure to maintain lane. OCGA § 40-6-48. Morrissette appeals from the judgment of conviction and sentence entered thereon.
The evidence presented at trial showed that Morrissette was driving a sport-utility vehicle with three passengers in the early morning hours. The vehicle flipped over, injuring several of the
passengers. Officer Dale Nix of the DeKalb County Police Department responded to the accident. When Morrissette stepped forward to identify himself as the driver, Nix detected a strong odor of alcohol. He made a decision then to call another officer "better trained for DUIs." In less than five minutes, Officer John Fox of the Strategic Traffic Accident Reduction (STAR) team of the DeKalb Police Department arrived on the scene. Fox also noticed an odor of alcohol on Morrissette's breath and observed that Morrissette's eyes were bloodshot and glassy and he was unsteady on his feet. While emergency medical technicians treated Morrissette's passengers, who were more severely injured, Fox conducted field sobriety tests on Morrissette, after which Morrissette was treated by the EMTs and released. Fox then placed him in the back of his patrol car and turned his attention to the clearing and removal of the wreck. Fox then advised Morrissette that he was under arrest for DUI, read him his implied consent rights, and transported him to a nearby hospital for a blood alcohol test and further examination for possible injuries. Morrissette's blood alcohol level tested at 0.16 grams.
1. Morrissette contends the trial court erred in admitting evidence of the field sobriety tests.
(a) He first argues that it was error to admit evidence of the field tests because he was in custody at the time and received no Miranda warnings.
In Miranda v. Arizona, 384 U.S. 436, 478 (86 SC 1602, 16 L.Ed.2d 694) (1966), the Supreme Court held that individuals who are "in custody" must be advised of their rights against self-incrimination before they may be interrogated. Hughes v. State, 259 Ga. 227, 228 (2) (a) (378 S.E.2d 853) (1989). But only custodial statements by an accused must be preceded by Miranda warnings. Carroll v. State, 203 Ga. App. 22-23 (416 S.E.2d 354) (1992). Morrissette claims he was "in custody" when the field sobriety tests were performed because he was not free to leave. He argues that Nix placed him in the back of his patrol car to await Fox's arrival. His driver's license was taken. Although he was not handcuffed, the back door handles on Nix's patrol car's had been removed, making the doors difficult (although not impossible, according to Fox) to open from the inside. Even had he been able to exit the patrol car, he could not have left the scene. His own vehicle was not driveable and even if it had been, Morrissette had been in an accident and had a legal obligation to remain at the scene.
Morrissette's argument has no merit. First, field sobriety tests
are not "statements." They are "not evidence of a testimonial or communicative nature." They are therefore not inadmissible under the fifth amendment to the U.S. Constitution even if the accused was "in custody" and no Miranda warnings have been given. Hughes, supra at 228 (2) (b).
Second, unlike the situation in State v. O'Donnell, 225 Ga. App. 502 (484 S.E.2d 313) (1997), cited by Morrissette, the record shows that Morrissette was not "in custody." Morrissette was in the back seat of Nix's patrol car "less than five minutes" awaiting Fox's arrival. He was released from the patrol car as soon as Fox arrived. And the fact that Morrissette may have had no apparen
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