MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
Licata was charged with driving under the influence of
alcohol to the extent that he was a less safe driver,
reckless driving, hit and run, failure to maintain lane, and
driving on the wrong side of the roadway. He successfully
moved to suppress the results of his field sobriety tests and
evidence of his refusal to take a breath test. The state
appeals the grant of that motion.
the field sobriety tests, the trial court found that Licata
was in custody at the time he was asked to perform them and
that the Miranda warning given to him was
insufficient to apprise him of all of his rights under the
Georgia Constitution. The state argues that Licata was not in
custody at that time and so was not entitled to any warning
about his right not to incriminate himself. We hold that
regardless of whether Licata was in custody, he was
sufficiently warned of his right not to incriminate himself.
While our Supreme Court has recognized that the Georgia
Constitution affords rights beyond those afforded by the
federal constitution, it has held a Miranda warning
sufficient as to those additional rights.
state also argues that Licata was not entitled to counsel
when deciding whether to submit to the state-requested breath
test, so the trial court erred in excluding evidence of
Licata's refusal to take the test on the basis that he
had requested an attorney pursuant to a Miranda
warning. We agree with that argument as well. So we reverse
the trial court's grant of Licata's motion to
When reviewing a trial court's ruling on a motion to
suppress, an appellate court must construe the evidentiary
record in the light most favorable to the factual findings
and judgment of the trial court. This means that the
reviewing court generally must accept the trial court's
findings as to disputed facts unless they are clearly
erroneous, although the reviewing court may also consider
facts that definitively can be ascertained exclusively by
reference to evidence that is uncontradicted and presents no
questions of credibility, such as facts indisputably
discernible from a videotape.
Mitchell v. State, __Ga. __(__ S.E.2d __) (Case No.
S17A0459, decided June 26, 2017). So viewed, the facts show
that Licata was involved in a traffic accident. He did not
stop at the scene of the accident, but drove on, until he was
stopped about a mile away by a deputy with the Forsyth County
Sheriff's Office, who had been alerted by a "be on
the lookout" report. One of Licata's front tires was
flat, one tire was missing, and Licata was driving on the
rim, causing sparks to fly. The deputy witnessed Licata
strike a construction cone and fail to maintain his lane. The
deputy stopped Licata, who admitted to having drunk half a
bottle of wine.
arresting officer, another Forsyth County deputy sheriff,
arrived at the scene. Licata was outside of his truck, he was
not handcuffed, and he had not been placed in the back of a
patrol vehicle. The arresting officer called Licata over to
the front of the patrol car where the arresting officer was
standing (which placed Licata in the range of the dashboard
camera), introduced himself, and then said, "Give me one
sec. Let me turn some of these lights off, alright."
arresting officer walked toward the driver side of his patrol
car, out of range of the dashboard camera, and called for a
wrecker. His car's flashing blue lights were
extinguished, and the arresting officer walked back toward
Licata, into the range of the dashboard camera, in front of
the patrol car. The following exchange then took place:
OFFICER: I want to talk with you about
what's going on tonight, what has happened. Okay. You
were involved in an accident with a another vehicle, is that
LICATA: Yes sir.
OFFICER: Okay. Back here on Buford Highway?
OFFICER: Okay. I want to talk to you a
little bit about that, okay. But before I do, I'm going
to read you something here, okay.
LICATA: Yes, sir.
OFFICER: Okay. Is there any reason you
didn't stop for the car?
LICATA: I slowed down and it pulled out in
front of ...