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 States 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 investigative detention into 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.