Lankford v. State, A92A0350

• Court: United States Court of Appeals (Georgia)
• Citation: 419 S.E.2d 498,204 Ga.App. 405
• Docket Number: No. A92A0350,A92A0350
• Parties: LANKFORD v. The STATE.
• Decision Date: 13 May 1992

Page 498

419 S.E.2d 498

204 Ga.App. 405

LANKFORD v. The STATE.

No. A92A0350.

Court of Appeals of Georgia.

May 13, 1992.

Reconsideration Denied June 2, 1992.

Certiorari Denied July 16, 1992.

G. Alan Blackburn, Marietta, for appellant.

Patrick H. Head, Sol., Beverly M. Collins, B. Martin First, Asst. Solicitors, for appellee.

JOHNSON, Judge.

George W. Lankford was convicted of failure to maintain lane, following too closely, violating the duty of a driver to stop at the scene of an accident, driving under the influence of alcohol, no proof of insurance and driving without a license on his person. Lankford appeals from his conviction and the denial of his motion for a new trial.

1. Lankford contends the trial court erred in allowing evidence that he refused to take a breath test. It is uncontroverted that the arresting officer read to Lankford his implied consent rights under OCGA § 40-5-55 before asking Lankford to submit to the breath test. Lankford argues, however, that evidence of his refusal to take the test should have been excluded because the officer did not advise him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This argument is without merit.

"In any criminal trial, the refusal of the defendant to permit chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him." OCGA § 40-6-392(d). "A refusal to take a blood alcohol test which was requested by a police officer is not an act coerced by the officer, and the refusal is not protected by the privilege against self-incrimination." Patton v. State, 170 Ga.App. 807(2), 318 S.E.2d 231 (1984), citing Wessels v. State, 169 Ga.App. 246, 312 S.E.2d 361 (1983). Lankford's refusal to take the test is not protected by the privilege against self-incrimination. Accordingly, the court was not required to exclude evidence of Lankford's refusal due to the officer's failure to inform Lankford of his Miranda rights. We find no error.

2. Lankford enumerates as error the trial court's denial of his motion to suppress evidence of his field sobriety test. The arresting officer was allowed to testify that at the scene of the traffic stop Lankford was not able to recite the entire alphabet or adequately perform physical dexterity tests. Lankford was not informed of his Miranda rights prior to the test. Consequently, Lankford claims, the officer's testimony violated his right against self-incrimination as protected by the fifth amendment of the United States Constitution, by Art. I, Sec. 1, Par. XVI of the Georgia Constitution and by OCGA § 24-9-20. This enumeration is without merit.

"[W]e hold that the alphabet test and the physical dexterity tests are not inadmissible under the fifth amendment of the United States Constitution because they were not evidence of a testimonial or communicative nature." Hughes v. State, 259 Ga. 227, 228(2)(b), 378 S.E.2d 853 (1989). Consequently, the officer's testimony regarding the field sobriety test was admissible and did not violate Lankford's rights under the fifth amendment.

Moreover, we find that there was no violation of Lankford's right not to incriminate himself under the fifth amendment, the Georgia Constitution, or OCGA § 24-9-20, because he was not in custody at the time the field sobriety test was administered. "A law enforcement officer coming upon the scene of suspected criminal activity will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene who tries to leave before the preliminary investigation is completed. Such detentions do not trigger the requirements of Miranda v. Arizona." (Punctuation and citations omitted.) Daugherty v. State, 182 Ga.App. 730, 731, 356 S.E.2d 902 (1987). Here, the evidence shows that an off-duty police officer observed Lankford commit several traffic offenses. The officer stopped Lankford and noticed that he appeared to be intoxicated. The officer waited with Lankford for approximately three minutes before two other officers arrived to conduct an investigation. The off-duty officer then left the scene. One of the backup officers conducted the field sobriety test before placing Lankford under arrest. "The evidence authorized the conclusion that defendant had not yet been arrested at the time of his [field sobriety test] but was being briefly detained while the officer determined the nature of the situation." Daugherty v. State, supra. " 'Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.' [Cits.]" Lipscomb v. State, 188 Ga.App. 322, 372 S.E.2d 853 (1988). Since Lankford was not formally arrested until after the field sobriety test, there was no violation of his right against self-incrimination. The trial court therefore did not err in denying Lankford's motion to suppress.

3. Lankford complains that the trial court erred in failing to direct a verdict of acquittal as to the offenses of failure to maintain lane, no proof of insurance, and driving without a license on his person. Lankford argues that there was insufficient evidence to prove the essential elements of each offense. We disagree.

Lankford made a motion for a directed verdict of acquittal only as to the offense of failure to maintain lane. He made no such motion as to the offenses of no proof of insurance and driving without a license on his person, although he did challenge the sufficiency of the evidence on those two offenses in his motion for a new trial. On appeal, the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), "is the proper test [to be used] when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for a new trial based upon alleged insufficiency of the evidence." Humphrey v. State, 252 Ga. 525, 527(1), 314 S.E.2d 436 (1984). One police officer testified that he stopped Lankford after seeing him swerve out of his lane three times, run into the back of another car, and leave the scene of the collision without stopping. Another officer testified that Lankford failed to produce his driver's license and proof of insurance upon request. He also testified that neither of those items was found in Lankford's car during a routine inventory search...