DUI Henry County: Post Arrest Demand for Preliminary Alcohol Breath Test; Jury Charge on Suppressed Breath Test. Hale v. State, A11A0327, June 30, 2011.
Walter Hale was arrested for DUI in McDonough, Henry County Georgia after passing another vehicle over a double yellow line on a motorcycle. He was stopped in the parking lot of a Motorcycle bar. He performed standardized field sobriety tests and failed. After arrest, he demanded a preliminary breath test and a blood test. The officer gave him a preliminary breath test. Hale was convicted by a jury at trial. On appeal, he argued that the preliminary breath test should be suppressed because he was never read his Miranda rights warning. The Georgia Court of Appeals held that after arrest Miranda rights are generally required prior to field sobriety evaluations to be admissible that in this case, Hale demanded a preliminary breath test so no Miranda rights were required much like a spontaneous statement after arrest not in response to police questions.
Hale also requested a blood test which was not accommodated by police so the state-administered breath was excluded from the evidence before the jury. Before trial, Hale asked the trial court to explain the difference between per se and less safe DUI. The judge agreed but insisted on telling the jury that the original breath test had been excluded from evidence. The Georgia Court of Appeals held that this was an error and fraught with potential prejudice and improper.