On June 7, 1997, Margaret Kirbabas, defendant-appellee and appellant, was observed weaving in her car on Towne Lake Parkway by Officer David Wooldridge of the Woodstock Police Department and was stopped. Officer Wooldridge saw the defendant cross completely the right lane marker and then drift to the lеft to partially cross the centerline; such weaving and defendant’s slow speed raised Wooldridge’s articulable suspicion that the defendant could be impaired.
Upon beginning his investigatory stop, Wooldridge smelled about the defendant the odor of alcohol and observed a slightly slurred speech. He asked the defеndant if she had been drinking; she said yes. He asked for and received her driver’s license and insurance card, checked them, and placed them in his ticket book in his patrol car while he completed his investigation.
Wooldridge requested that the defendant undergo the field sobriety tests, and she agreed to do them. Wooldridge had been certified to conduct the standardized field sobriety tests and had conducted 15 to 20 field sobriety tests at that time.
Upon performing the horizontal gaze nystagmus (“HGN”) test, he noted six positive indications of alcohol impairment. Defendant next performed the walk and turn test and exhibited difficulty with balance, broke her stance during instruction, and made an incorrect turn. Defendant next did a one-leg stand but put her foot down prematurely four times and had to raise her arms to maintain balance; she was deemed to have failed this test by Wooldridge. Finally, the defendant was administered an alco-sensor breath test, which indicated positive for alcohol.
Wоoldridge came to the opinion from his observations and investigation that the defendant was a less safe driver under the influence of alcohol. He arrested her, placed her in handcuffs, and read her the Georgia implied consent notice. She stated that she did not want to take the State-administered breath test. At the Woodstock Police Station, defendant agreed to submit to the Intoxilyzer breath test. *475 However, defendant insufficiently blew into the tube for the audible tone to be activated. After being given another chance to take the test, defendant refused because she was “scared.” Wooldridge then informed the defendant “Fine. I’ll susрend your license.” He then prepared a Department of Public Safety (“DPS”) Form 1205 for suspension.
At the motion to suppress hearing, the trial court held any field sobriety test results after the HGN were inadmissible because the defendant was in custody under arrest and had not been given a Miranda warning.
Case No. A98A1020
The State’s sole enumeration of error is that the trial court erred in finding that the defendant was under arrest following the administration of the HGN test, and, prior to the rest of the field sobriety tests, because, at that tipie, the officer “believed” that the defendant was probably an impaired driver; thus, the trial court concluded that Miranda warnings should have been given before the field sobriety tests were conducted. We agree with the State such conclusion was error under the facts of this case.
“For the proscriptions of
Miranda v. Arizona,
“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 tеmporary.
Berkemer v. McCarty,
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 *476 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. In this case, the officer did not place the defendant trader arrest until after the field sobriety and alco-sensor tests had been аdministered.
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,
Here, however, absent the officеr making any statement that would cause a reasonable person to believe that she was under arrest and not temporarily detained during an investigation, the officer’s “belief” that probable cause exists to make an arrest does not determine when the arrest is effectuated until the officer overtly acts so thаt a reasonable person would believe she was under arrest.
“ Tn effect, (defendant) would have us rule that once a police officer has probable cause to arrest, he must arrest and
Mirandize.
But that is not the law. Whether a police officer (subjectively) focused his unarticulated suspicions upon the individual being quеstioned is of no consequence for
Miranda
purposes.
Stansbury v. California,
[supra].’
Hodges v. State,
Under
Terry v. Ohio,
The objective test is that “the police can be sаid to have seized an individual ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ”
Michigan v. Chesternut,
Since there was no arrest during thе temporary investigatory stop to conduct the field sobriety tests and administer the alco-sensor test to the defendant with her consent, then the defendant was not deemed in custody, seized, or “under arrest” for
Miranda
purposes even if the officer had possession of her driver’s license and insurance card and temporаrily detained her.
Sisson v. State,
Further, “field sobriety tests are not ‘statements.’ They are ‘not evidence of a testimonial or communicative nature.’ They are therefore not inadmissible under the Fifth Amendment to the U. S. Consti
*478
tution even if the accused was ‘in custody’ and no
Miranda
warnings have been given.
Hughes,
supra, at 228 (2) (b).”
Morrissette v. State,
supra at 421-422. Therefore, no
Miranda
warnings were necessary, because such temporary investigatory stop does not trigger the requirements of
Miranda. Morrissette v. State,
supra at 422;
State v. Pastorini,
supra at 317-318;
Coates v. State,
The trial court еrred as a matter of law in applying the wrong legal standard for arrest and in suppressing the evidence of the field sobriety tests because no Miranda warnings had been given. The trial court erred in ruling that the Miranda warnings had to be administered as soon as the officer subjectively “believed” that he had probable cause to arrest the defendant for driving under the influence, prior to the completion of the field sobriety tests and the administration of the alco-sensor test, rather than after the officer completed his probable cause inquiry and actually arrested the defendant.
Case No. A98A1021
1. The defendant’s first enumeration of error is that the trial court erred in finding that the implied consent warnings were proper, although thе officer stated three times “I will suspend” your license and did not trace the exact language of OCGA § 40-5-67.1 (b) (2). We do not agree.
(a) After placing the defendant under arrest, Officer Wooldridge read to the defendant the exact language of the statute contained in Ga. L. 1995, pp. 1160-1161, § 1 (OCGA § 40-5-67.1 (b) (2)).
See Richards v. State,
“In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most *479 favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be аdopted unless clearly erroneous. [Cits.]” Wells v. State, supra at 521; State v. Fielding, supra at 675.
(b) While the officer may have
subsequently,
after the defendant’s refusal to submit to a breath test and after the initial warning at the time of arrest, incorrectly repeated all or portions of the statutory warning, such does not negate or nullify the giving of the warning correctly in compliance with the statutory mandate, becausе the officer was under no duty to give
further
warnings or instructions after the implied consent warning was given properly at the time of arrest.
Wells v. State,
supra at 524; see generally
Dawson v. State,
(c) The defendant, also, contends that the officer told her three times after he had completed the implied consent warning and after her initial refusal to submit to the breath test, that if she did not submit to a breath test, then he would suspend her driver’s license for one year. Earlier, the officer had correctly read to her that her license would be suspended for one year for refusal to submit to the State-designated and -administеred test. The implied consent warning does not specify how such provision would be enforced if she refused, because the implied consent warning does not mandate the disclosure of such information as a part of the warnings. Thus, the officer was under no obligation to inform the defendant how her license would be suspended for her refusal to take the State chemical test. Wells v. State, supra at 524.
The officer was the agent for the State in the enforcement of the implied consent law, in providing the warning, in choosing the test, in administering the test, in initiating any sanction proceedings, and in providing the evidence of refusal. Therefore, for all practical purрoses for the defendant, the officer was the State. While it is, in fact, the DPS that conducts the hearing to suspend the driver’s license for refusal to submit to a State-designated test, it is the officer that initiates any suspension proceeding and provides the evidence of refusal. See OCGA §§ 40-5-67.1; 40-5-67.2. Therefore, such statement was not falsе or misleading and directly and personally brought home to the defendant the consequences of her refusal. In any event, there was no harm shown by the defendant. Wells v. State, supra at 524.
2. The defendant’s final enumeration of error is that the trial court erred in finding that the officer had not engaged in an unconstitutional pretextual stop under the Georgia Constitution by looking for a reason to stop the driver. We do not agree.
Contrary to the defendant’s interpretation of
Gary v. State,
262
*480
Ga. 573, 574-575 (
The protection against unreasonable search and seizure of a person comes under Art. I, Sec. I, Par. XIII of the 1983 Constitution of Georgia. Such сonstitutional provision is similar to the provisions of the Fourth Amendment and is construed in the same way by Georgia appellate courts.
Curry v. State,
The Supreme Court of Georgia rejected the argument that a pretextual arrest for parole violation violates the Fourth Amendment in
Jackson v. State,
supra at 131 (5), citing
Whren v. United States,
Tate v. State,
In this case, the videotape clearly showed that the defendant, although not excessively, weaved within the lane, went onto the shoulder, and partially crossed the centerline. Therefore, the trial court’s determination that the officer had a “reasonably articulable suspicion” that supported stopping the defendant for weaving was not clearly erroneous. Tate v. State, supra at 57. If there was a legal reason to stop the defendant for a traffic violation, then it cannot, either legally or constitutionally, be “pretextual” under the Fourth Amendment and the Georgia Constitution. Whren v. United States, supra; Jackson v. State, supra at 131.
Judgment affirmed in Case No. A98A1021. Judgment reversed in Case No. A98A1020.