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State v. Lentsch11/8/2001
Compare Price v. State, 269 Ga. 222, 224-225 (3) (498 SE2d 262) (1998) (Miranda warnings necessary because suspect "in custody" when field sobriety tests performed). The trial court erred in granting Lentsch's motion to suppress on this ground.
3. Finally, even if probable cause did not exist for a formal arrest when Lentsch was handcuffed, it existed after he was read the implied consent rights and refused to take the State-administered chemical test. A suspect may be advised of implied consent rights and required to choose whether to submit to or refuse a state administered chemical test even though that suspect is not under arrest. Joiner v. State, 239 Ga. App. 843, 847 (1) (b) (ii), (iii) (522 SE2d 25) (1999). Lentsch was not entitled to an attorney at this stage. Cogdill v. Dept. of Public Safety, 135 Ga. App. 339, 340-341 (2) (217 SE2d 502) (1975). But even after Lentsch was placed in handcuffs, the failure to give Miranda warnings does not require that Lentsch's refusal to take a state administered breath test be suppressed. Bowman v. Palmour, 209 Ga. App. 270, 271 (2) (433 SE2d 380) (1993). We have held that the results of breath tests are admissible notwithstanding that a suspect is in custody when the test is given and no Miranda warnings are given. The results of a breath test are not testimonial or communicative evidence. Scanlon v. State, 237 Ga. App. 362, 364 (2) (514 SE2d 876) (1999).
Unlike cases involving field sobriety testing, this court has never held that Miranda warnings must precede the giving of an implied consent notice to a DUI suspect in police custody. Our state constitution does not prohibit the taking of a blood, urine, breath, or other bodily substance sample from a defendant without consent, provided the taking of the sample is done under constitutionally acceptable conditions. (Citations omitted.) Id. at 365 (4).
It follows that Lentsch's refusal to take such a test is also admissible, as provided by OCGA § 40-6-392 (d). Combined with the officer's observations about the odor of alcohol emanating from Lentsch and his bloodshot eyes, Lentsch's refusal to take the state administered chemical test provided sufficient probable cause for his arrest. The trial court's grant of Lentsch's motion to suppress is therefore reversed.
Judgment reversed.
Barnes and Phipps, JJ., concur.
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