Atlanta DUI Home arrow Resources arrow All Blog Articles arrow Are Atlanta and Georgia DUI police officers required to read Miranda Rights at a DUI traffic stop?
Are Atlanta and Georgia DUI police officers required to read Miranda Rights at a DUI traffic stop?

The answer is yes and no. Georgia DUI arrestees like all criminal suspects possess a right to remain silent and not incriminate themselves. These are most commonly known as Miranda rights, but come from the Fifth Amendment rights of the United State Constitution, rights under the Georgia Constitution, or rights under O.C.G.A. 24-9-20. See O’Donnell v. State, 225 Ga. App. 502 (1997)(Atlanta Fulton County DUI arrest)  Price v. State, 269 Ga. 222 (1998)(DeKalb County DUI).  Based on these rights an Atlanta DUI defendant who is "in custody" can not be compelled to perform field sobriety tests or give statements in response to police questioning.  The Federal Miranda rights only protect testimonial evidence or statements.  However, the Georgia Code extends those protections to things like field sobriety tests.  Although generally, a person stopped for suspected DUI in for example Atlanta, Georgia is not "in custody" certain actions by the Atlanta police or other local Georgia police can turn a investigative detention into a custodial detention which requires the reading of Miranda rights even without a formal arrest and a trip to the Atlanta Detention Center.  

"The test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect's position would have thought the detention would not be temporary. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (1984)." Hughes v. State, 259 Ga. 227, 228, 378 S.E.2d 853 (1989)(Cobb County DUI); see also Price v. State, 269 Ga. 222, 498 S.E.2d 262 (1998); State v. O'Donnell, 225 Ga.App. 502, 503(1), 484 S.E.2d 313 (1997).

In Hughes v. State, supra, the arresting officer made an arrest when he told the defendant that he was "not free to leave the scene of the initial stop" so that the field sobriety tests were performed after an arrest without giving a Miranda warning. In State v. O'Donnell, supra, the defendant, after a serious accident, left the scene and was involved in a second accident; the defendant was arrested and brought back to the scene of the first accident before being given the field sobriety tests and without receiving a Miranda warning.

Under both Berkemer v. McCarty, supra, and Hughes v. State, supra, it is the reasonable belief of an ordinary person under such circumstances, and not the subjective "belief" or intent of the officer, that determines whether an arrest has been effected. See Morrissette v. State, 229 Ga.App. 420, 422(1)(a), 494 S.E.2d 8 (1997)(DeKalb County DUI). Thus, when an officer tells a defendant that she is going to the Atlanta jail, whether or not she consents to submit to a field sobriety test, "[u]nder these circumstances we must conclude that, having been informed that she was going to jail, a reasonable person would have believed that the detention was not temporary. Therefore, the failure to give the Miranda warnings renders evidence regarding the field sobriety tests inadmissible." Price v. State, supra at 225(3), 498 S.E.2d 262.





Reddit!Del.icio.us!Facebook!Slashdot!Netscape!Technorati!StumbleUpon!Newsvine!Furl!Yahoo!Ma.gnolia!Free social bookmarking plugins and extensions for Joomla! websites! title=
 
< Prev   Next >

To obtain legal advice, please call (770) 961-5511 or email George C. Creal, Jr., P.C. at firm@georgialawyer.com. George C. Creal, Jr., P.C. is a law firm representing those charged with DUI or driving under the influence of alcohol or drugs. We have been representing DUI Defendants for ten years in the City of Atlanta, Acworth, Alpharetta, Athens, Austell, Avondale Estates, Ball Ground, Barnesville, Big Canoe, Calhoun, Canton, Carnesville, Carrollton, Cedartown, Chatsworth, Chattahooche Hills, Clarkston, College Park, Commerce, Conyers, Covington, Dahlonega, Dallas, Decatur, Doraville, Douglasville, Duluth, Dunwoody, East Point, Fairburn, Forest Park, Forsyth, Fort McPherson, Fort Gillem, Gainesville, Grayson, Griffin, Hampton, Hapeville, Helen, Holly Springs, Johns Creek, Jonesboro, Kennesaw, LaGrange, Lake City, Lawrenceville, Locust Grove, Loganville, Lovejoy, Marietta, McDonough, Morrow, Newnan, Norcross, Palmetto, Peachtree City, Powder Springs, Roswell, Sandy Springs, Senoia, Smyrna, Stockbridge, Stone Mountain, Suwanee, Thomaston, Tucker, Union City, Villa Rica, Winder, Woodstock, and Zebulon and their surrounding counties including Fulton, Clayton, DeKalb, Henry, Fayette, Rockdale, Gwinnett, Cherokee, Forsyth, Coweta, Cobb, Douglas and Spalding. We also represent Defendants upon request outside of the Atlanta area throughout the State of Georgia.

No legal advice should be obtained from the web site alone. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this web site is intended for use for DUI/DWIs occuring in the State of Georgia. Individuals with DUI/DWIs from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI. Copyright © 2010 George C. Creal, Jr. P.C.