Harper v. State

• Decision Date: 26 April 2000
• Docket Number: No. A00A0147.,A00A0147.
• Parties: HARPER v. The STATE.
• Court: Georgia Court of Appeals

534 S.E.2d 157

243 Ga. App. 705

HARPER v. The STATE.

No. A00A0147.

Court of Appeals of Georgia.

April 26, 2000.

Robert A. Meier IV, Atlanta, for appellant.

Joseph J. Drolet, Solicitor, Shukura L. Ingram, Assistant Solicitor, for appellee.

SMITH, Presiding Judge.

Chris Marion Harper was convicted of driving under the influence of alcohol. Following denial of his motion for new trial, he appeals. He claims that the trial court erred by not excluding evidence of his sobriety tests because the tests were administered after he was placed under arrest but before he was advised of his Miranda rights. We find this contention to be without merit, and we affirm.

Early in the morning of September 21, 1996, Officer Stewart saw Harper driving west on Lindbergh Road in Atlanta. Harper made an illegal right turn onto Peachtree Road at a red light at the intersection of Lindbergh Road and Peachtree Road, and the officer pulled him over. Officer Stewart noticed that Harper's eyes were red, that his speech was slurred, and that there was a strong smell of alcohol coming from his vehicle. Suspecting Harper to be driving under the influence, Officer Stewart called for a DUI task force officer. In response, Officer Garrison arrived and led Harper through a series of field sobriety tests. Officer Garrison then informed Harper that he was under arrest, read him the implied consent notice, and took him into custody.

1. Harper claims that his detention had ripened into an arrest before Officer Garrison conducted the sobriety tests and that because he had not been previously read his Miranda rights, the tests were improper and should not have been admitted into evidence. We disagree.

OCGA § 24-9-20(a) provides that no person who is charged with a crime can be compelled to give evidence against himself. Applying this statute, we have held that if an officer gives a field sobriety test to a person who is under arrest but who had not been warned of his right against self-incrimination, then the test is inadmissible. See State v. Warmack, 230 Ga.App. 157, 158, 495 S.E.2d 632 (1998); State v. O'Donnell, 225 Ga.App. 502, 504(2), 484 S.E.2d 313 (1997). Conversely, if an officer gives a field sobriety test to a person who is not under arrest, then the test is admissible even if the person had not been warned of his Miranda rights. See Crum v. State, 194 Ga.App. 271, 272, 390 S.E.2d 295 (1990).

The trial court found that Harper was placed in custody only after Officer Garrison completed his DUI investigation. "The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous. [Cit.]" Johnson v. State, 234 Ga. App. 116, 118(2), 506 S.E.2d 234 (1998). "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. [Cit.]" Hughes v. State, 259 Ga. 227, 228(1), 378 S.E.2d 853 (1989). Harper emphasizes the length of time from the traffic stop to the arrival of the DUI task force officer and argues that because of the excessive delay, his detention ripened into an arrest. There is conflicting testimony concerning the time it took from the initial traffic stop until Officer Garrison arrived to conduct the investigation. Officer Stewart estimates the wait was only a few minutes while Harper testified that it was approximately a half-hour, and other evidence would support a finding that the delay lasted up to an hour. We have previously held that a wait of...