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State v. Licata

Court of Appeals of Georgia, Fifth Division

October 26, 2017

THE STATE
v.
LICATA.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         Michael 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.

         As to 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.

         The 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 suppress.

         1. Facts.

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.

         The 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."

         The 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 correct?
LICATA: Yes sir.
OFFICER: Okay. Back here on Buford Highway?
LICATA: Right.
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.
[Unintelligible.]
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 ...

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