Smith v. State, A98A2280.

Citation512 S.E.2d 19,236 Ga. App. 548
Decision Date03 February 1999
Docket NumberNo. A98A2280.,A98A2280.
PartiesSMITH v. The STATE.
CourtUnited States Court of Appeals (Georgia)


Monte K. Davis, Atlanta, for appellant.

Keith C. Martin, Solicitor, Kimberly A. Gross, Assistant Solicitor, for appellee. JOHNSON, Chief Judge.

After a bench trial, Charles Smith was found guilty of driving under the influence of alcohol to the extent it was less safe for him to drive, driving without a license and driving without proof of insurance. Smith appeals from the DUI and driving without a license convictions.

1. Smith contends the trial court erred in denying his motion to suppress because the arresting officer had no reasonable articulable suspicion justifying the stop of his car. We disagree.

In reviewing a trial court's ruling on a motion to suppress, this Court construes the evidence most favorably to uphold the findings and judgment of the trial court. Pickens v. State, 225 Ga.App. 792(1), 484 S.E.2d 731 (1997).

The arresting officer testified that she was on patrol on November 15, just before 8:00 p.m., when she first encountered Smith driving on Tara Boulevard in Clayton County. An automobile race had just ended nearby, and traffic was heavy in the area. It was well known to police officers that the racing events were often accompanied by an increase in drunk driving incidents.

The officer observed Smith "weaving erratically back and forth" within his lane. The officer followed Smith for a while and was unable to observe any legitimate reason for the weaving. There were cars in the adjoining lane, and the officer thought that Smith's driving was unsafe. The officer testified that, in her experience, there seemed to be a relationship between weaving and driving while under the influence of alcohol. Thinking that Smith might be under the influence of alcohol, the officer pulled him over. After further investigation, including her observations, Smith's attempt at a field test and license and insurance checks, the officer formally arrested Smith.

"A police officer may legally conduct a brief investigatory stop without a showing of probable cause where the officer observes unusual conduct which, when viewed in the light of [her] experience, causes [her] to conclude that the individual is involved in criminal activity." (Citations and punctuation omitted.) Atkins v. State, 209 Ga.App. 70, 432 S.E.2d 661 (1993).

In Semich v. State, 234 Ga.App. 89, 506 S.E.2d 216 (1998), we examined the issue of whether weaving within a lane, which is not a crime per se, justifies a brief investigatory stop. Id. at 91(b), 506 S.E.2d 216. We held that the defendant's action of weaving within a lane, combined with his abrupt change in direction of travel and the late hour, gave rise to reasonable suspicion justifying a stop. Id. at 92, 506 S.E.2d 216. Although in Semich the officer observed furtive movement, a fact not present in the instant case, the court's reasoning and decision were primarily based upon the sufficiency of weaving within a lane as grounds for a brief stop.

We find the reasoning in Semich persuasive. The Semich court expressly recognized that the law has become increasingly less tolerant of intoxicated drivers and implicitly disapproved an earlier case intimating that weaving within a lane was insufficient to justify a stop. We agree and hold that under the circumstances presented here, weaving within a lane raised a reasonable suspicion that Smith was intoxicated and should not be driving.

This is not a situation in which an officer was arbitrarily harassing a motorist for no sensible reason; rather the officer stopped someone she reasonably suspected, based on her own observations, posed an immediate and significant danger to the public. See Atkins, supra at 71, 432 S.E.2d 661; State v. Armstrong, 223 Ga.App. 350, 352-353(2), 477 S.E.2d 635 (1996). The trial court did not err in denying Smith's motion to suppress. See Allenbrand v. State, 217 Ga.App. 609, 610(1), 458 S.E.2d 382 (1995).

2. Smith claims the trial court erred in denying his motion to suppress evidence obtained at the scene because he was not given his Miranda warnings when he was first asked to step out of the car to take field sobriety tests.1 Smith argues that he was under arrest and the warnings were required because when he asked if he could leave, the officer told him he could not. Given the facts of this case, we disagree.

When a person is placed in custody or under arrest at a traffic stop, the protection of Miranda arises; however, roadside questioning at a routine stop does not constitute a custodial arrest. Lebrun v. State, 255 Ga. 406, 407(3), 339 S.E.2d 227 (1986); Metheny v. State, 197 Ga.App. 882, 884(1)(a), 400 S.E.2d 25 (1990). A detained individual is not under arrest simply because, by leaving, he could be arrested for violating state law. See State v. Pastorini, 222 Ga. App. 316, 317-318(1), 474 S.E.2d 122 (1996). Nor is he under arrest because an officer has discovered the commission of a traffic offense for which he could be arrested. See Crum v. State, 194 Ga.App. 271, 272, 390 S.E.2d 295 (1990). The safeguards prescribed by Miranda become applicable only after a detainee's freedom of action is curtailed to a degree associated with formal arrest. Johnson v. State, 234 Ga.App. 116, 117(2), 506 S.E.2d 234 (1998). A person is in custody if a reasonable person in the detainee's position would have thought the detention would not be temporary. See Pastorini, supra. The question 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. Johnson, supra at 118, 506 S.E.2d 234.

The officer observed Smith weaving, stopped him and asked for his license and proof of insurance. The officer detected a strong odor of alcohol and noticed Smith's speech was slurred and his eyes were red. Smith presented an expired insurance card and no driver's license. A computer check revealed that Smith had a California license, but that it expired in 1985. Smith then admitted to the officer that he did not have a valid license and that it was suspended in Oregon.

The officer asked Smith where he had been going. Smith replied that he was on his way home and asked the officer if she would "go ahead and let [Smith] drive on home." The officer replied that she would not. Because she wanted to conduct sobriety tests and to break up an argument Smith was having with his passenger, the officer asked Smith to step out of the car. Smith got out of the car but had difficulty standing. At some point during the stop, Smith told the officer "he'd only had a couple" of drinks.

The officer asked Smith if he would consent to some field tests, and he agreed. Smith had difficulty following instructions and was unable to stand up to perform the tests. The officer discontinued the tests, placed Smith under arrest for DUI, then read him his Miranda rights.

The fact that Smith had become the focus of an investigation, even to the point where the officer had probable cause for an arrest, did not constitute a formal arrest for Miranda purposes. See Johnson, supra at 119(2), 506 S.E.2d 234; Trudewind v. State, 224 Ga.App. 223, 224(1), 480 S.E.2d 211 (1996). Smith was not in custody until after he was given the field sobriety tests and formally arrested. See Crum, supra. Although the officer told Smith during the investigation that he was not free to leave, not every detention is an arrest. See Radowick v. State, 145 Ga.App. 231, 238(3), 244 S.E.2d 346 (1978). We conclude, as did the trial court, that a reasonable person under these circumstances would not have believed his freedom of action had been more than temporarily curtailed by the investigation and, therefore, he was not in custody for Miranda purposes. See Johnson, supra. The trial court's decision is not clearly erroneous. See State v. Dible, 232 Ga.App. 73, 74, 502 S.E.2d 245 (1998). Compare Price v. State, 269 Ga. 222, 225(3), 498 S.E.2d 262 (1998).

We do not agree that Hughes v. State, 259 Ga. 227, 378 S.E.2d 853 (1989), requires a different result. There the Supreme Court upheld the trial court's determination that an arrest occurred when the officer told the detainee he could not leave. In that case, the officer detained the suspect while he waited for assistance from other officers. When the other officers arrived, the detainee was asked to perform field tests. Hughes involved more than just a temporary investigative detention. Brown v. State, 223 Ga. App. 364, 367, 477 S.E.2d 623 (1996). Here, the officer was still conducting her investigation at the time she denied Smith's request to leave and asked him to step out of the car.

Moreover, the Supreme Court in Hughes affirmed the trial court's determination that the detainee was arrested because there was evidence in the record to support that determination. Likewise, in this case there is evidence in the record to support the trial court's ruling. A trial court's factual determination after a suppression hearing must be accepted by the appellate court where it is not clearly erroneous. See State v. Louis, 185 Ga.App. 529, 364 S.E.2d 896 (1988).

Considering the circumstances surrounding the stop and the deferential treatment given the trial court's determination on appeal, we find that the trial court did not err in denying the motion to suppress based on the officer's failure to give Smith Miranda warnings prior to conducting the field test. See Brown, supra at 368-369, 477 S.E.2d 623.

3. Smith contends the trial court abused its discretion by permitting the state to introduce evidence of two prior DUI convictions entered against him in Oregon. Smith argues that the convictions were inadmissible because: (1) the state did not prove that the Oregon DUI statute was comparable to OCGA § 40-6-391 (see subsection (h)(3)); (2) the...

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