Walter Douglas Hale was convicted by a jury on one count of passing in a no-passing zone
1
and one count of driving under the influence less-safe.
2
Hale appeals his convictions, arguing that the trial court erred by (1) denying his motion to suppress the results of an alco-sensor test conducted prior to receiving his
Miranda
warnings and (2) informing the jury as to the existence of excluded evidence during preliminary instructions.
Viewed in the light most favorable to the jury’s verdict, 3 the record shows that Hale was traveling on his motorcycle around 1:00 a.m. when he decided to pass another vehicle by crossing over a double-yellow line. A City of McDonough police officer observed this illegal maneuver and subsequently stopped Hale in the parking lot of his ultimate destination, a restaurant/bar frequented by other bikers. The officer immediately smelled the odor of an alcoholic beverage on Hale, and after being questioned, Hale admitted to having consumed one or two alcoholic beverages approximately two hours earlier.
The officer then asked Hale to perform three field sobriety tests (i.e., the horizontal-gaze nystagmus, the one-leg stand, and the walk-and-turn), and Hale exhibited clues of impairment during each of them. Thereafter, the officer inquired as to whether someone could retrieve Hale’s motorcycle for him, and then answered in the affirmative after Hale asked if he would be going to jail that evening. Hale then demanded a breath or blood test, and the officer administered a portable alco-sensor breath test, which returned a positive result for the consumption of alcohol. Additionally, the officer concluded that Hale’s manifestations were consistent with alcohol consumption and that he appeared to be a “less-safe driver.”
Given the foregoing, Hale was placed under arrest for violating a no-passing zone and driving under the influence less-safe. And upon his arrival at the police station, Hale was administered an Intoxilyzer 5000 breath test pursuant to the Georgia Implied Consent Statute. 4
Prior to trial, Hale sought to exclude the results of the portable alco-sensor test on the basis that he was in custody when it was conducted and should have been read his Miranda rights prior to its administration. But the trial court denied the motion to suppress, finding that Hale was not in custody during the administration of the test. Hale also sought to exclude the results of the Intoxilyzer 5000 breath test, arguing that he was denied the opportunity to seek an independent breath or blood test as allowed by law. 5 The trial court agreed that Hale had been denied this right and, accordingly, excluded the results of the later-conducted breath test at trial. 6 However, during preliminary jury instructions (while explaining the differences between DUI less-safe and DUI per se 7 ), the trial court mentioned — over the State and Hale’s objections — that this later-conducted breath test had been given but that its results had been suppressed. Thereafter, the jury convicted Hale on the offenses charged. This appeal follows.
1. Hale first contends that the trial court erred in denying his motion to suppress the results of the portable alco-sensor test. We disagree.
At the outset, we note that when reviewing a trial court’s decision on a motion to suppress evidence, we are guided by the following principles: (1) the trial judge sits as the trier of fact on a motion to suppress, and his findings should not be disturbed if there is any evidence to support them; (2) the trial court’s decision as to questions of fact and credibility “must be accepted unless clearly erroneous”; and (3) we must “construe the evidence most favorably to the upholding of the trial court’s findings and judgment.”
8
Here, the record shows that, following the administration of the three field sobriety tests, the officer inquired as to whether anyone was available to retrieve Hale’s motorcycle. In response, Hale asked if he was going to jail. When the officer replied in the affirmative, Hale immediately said, “Give me a blood test. Give me a breath test.” The officer then explained that while he could administer the portable roadside alco-sensor test, it was not considered a state-administered test. 10 Nevertheless, as explained supra, the alco-sensor test was administered and returned a positive result.
Hale then sought to exclude the positive alco-sensor test result on the basis that he was in custody when the test was administered and had not yet been read his Miranda rights. The trial court, however, denied Hale’s motion to suppress, concluding that Hale was not in custody at the time the test was given. And while we disagree with the trial court’s reasoning for denying Hale’s motion to suppress, we nevertheless conclude that the court did not err in admitting the results of the test.
Under Georgia law, “[a] police officer may briefly detain a motorist and administer field sobriety tests that are not of a ‘testimonial or communicative nature’ without advising the motorist of his or her rights against self-incrimination.” 11 Once a person has been placed under arrest, however, an officer may not administer an alco-sensor or other field sobriety tests without first giving the person the requisite Miranda warnings, because the results of tests so obtained are inadmissible under OCGA § 24-9-20 (a). 12
To determine whether or not a person who has not been formally arrested is nevertheless in custody for
Miranda
purposes, a “reasonable person” test is applied.
13
This analysis focuses on whether, under the circumstances, a reasonable person would conclude that his or her freedom of action was only temporarily curtailed and that a final determination of his or her status was merely delayed.
14
An officer’s subjective intent
But even though Hale was in custody for purposes of Miranda, the trial court did not err in admitting the results of the portable alco-sensor test because the portable test was administered in response to a demand from Hale, not the officer, thus making this situation clearly distinguishable from other custodial settings triggering the protections of Miranda and more akin to a spontaneous outburst from an unwarned suspect 17 or a test conducted pursuant to the Georgia Implied Consent Statute. 18 Accordingly, under these circumstances, the trial court did not err in admitting the results of Hale’s portable alco-sensor test.
2. Hale next contends that the trial court erred in mentioning the excluded results of the Intoxilyzer 5000 breath test administered pursuant to the Georgia Implied Consent Statute when instructing the jury on the differences between Georgia’s two types of DUI. We agree that the trial court erred, but conclude that this error was harmless and does not require reversal.
The record shows that after Hale was formally arrested, the officer read Hale his rights under the Georgia Implied Consent Statute, and Hale ultimately consented to the use of the Intoxilyzer 5000 breath test, which was administered upon his arrival at the police station. But both before and after this test was administered, Hale requested an independent blood test, which the State never allowed Hale to obtain. And based on this violation of Hale’s right to seek an independent test, the trial court ordered that the results of the Intoxilyzer 5000 breath test be excluded.
Nevertheless, prior to the beginning of trial, Hale’s trial counsel expressed a desire to educate the jury regarding Georgia’s two forms of DUI and the differences between DUI per se and DUI less-safe,
which was the type of DUI at issue in the trial. The trial court responded that it would give a preliminary
. . . This is a less-safe case. You may be wondering about a test. Georgia law says that if an officer has reason to believe that a driver is above the legal limit, the officer can request a test. The law also says that if the person takes the test then they have the right to their own test. In this particular case in a prior hearing, I ruled that Mr. Hale took the state test but was not given the opportunity to have his own test. So I ruled that the state’s test would not be admissible. So you won’t hear any evidence in this case about a test because it is not relevant. This is a less-safe case. It doesn’t matter whether the state’s test would have been zero or above the legal limit because, in this case, the state must prove that Mr. Hale consumed alcohol and, as a result of consuming that alcohol, he was a less-safe driver.
Hale argues that this preliminary instruction was effectively a comment on his guilt or innocence by the trial judge, which deprived him of a fair trial. We disagree, 21 but conclude that this preliminary instruction was both unnecessary and improper. 22 An erroneous jury instruction, however, is not “judged in isolation, but rather [is] considered in the context of the entire jury charge and the trial record as a whole to determine whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” 23 Further, “an erroneous jury charge is not reversible unless it causes harm.” 24
Applying the forgoing principles to the case sub judice, we conclude that the trial court’s error was harmless. While we fully recognize that the trial court sought to educate the jurors through its preliminary instructions, “its evidentiary preview was fraught with potential prejudice and [was] improper.”
25
Nevertheless, when the trial court’s comment is viewed in the context of
Accordingly, for all the foregoing reasons, we affirm Hale’s convictions.
Judgment affirmed.
Notes
See OCGA § 40-6-46 (b).
See OCGA § 40-6-391 (a) (1).
See, e.g., Goddard v. State,
See OCGA § 40-6-392.
OCGA § 40-6-392 (a) (3) (“The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.”).
We note that this test in fact returned a result that showed Hale was over the legal limit of 0.08.
See OCGA § 40-6-391 (a) (1), (5).
E.g., Polizzotto v. State,
Vansant v. State,
See OCGA § 40-6-392.
State v. Peters,
See State u. O’Donnell,
See, e.g., Norris,
Compare Jellie v. State,
Cf. Conner v. State,
See Price v. State,
See Phillips v. State,
See State v. Carraway,
See OCGA § 40-6-391 (a) (1) (“A person shall not drive orbe in actual physical control of any moving vehicle while . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive[.]”).
See OCGA § 40-6-391 (a) (5) (“A person shall not drive or be in actual physical control of any moving vehicle while . . . [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended[.]”).
See
OCGA § 17-8-57 (“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”);
see also Caldwell
v.
State,
See Bostic v. State,
Ruiz v. State,
Ruiz,
Wax v. State,
Compare Edmonds v. State,