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Sunday May 19th, 2019 10:46PM

Forsyth County man appeals to Supreme Court over evidence suppression in DUI case

By Alyson Shields Reporter

A Forsyth County man will go before the state's highest court Monday, appealing the Georgia Court of Appeals' reversal of a lower court's ruling that had granted his motion to suppress his refusal to take a breath test when his DUI case went to trial.
 
According to background from the Supreme Court of Georgia, Michael Richard Licata was pulled over for suspected driving under the influence in April of 2016 and was read his Miranda rights prior to field sobriety tests or a breathalyzer test. He was read his consent rights again, and then asked for an attorney following the field sobriety tests. When he was denied an attorney, he refused the breath test and he was arrested.
 
Prior to his trial, Licata's attorney filed a motion to suppress the results of the field sobriety tests and evidence of his refusal to take a breathalyzer test, which was granted by Forsyth County State Court. However, it was done because Licata was in custody and had been read his Miranda rights, though the traditional  warning omitted the right "not to act," and because he requested an attorney after those Miranda rights were read.
 
The State appealed to the Court of Appeals, which reversed the trial court's decision, ruling the trial court erred in suppressing the refusal evidence.
 
The facts provided by the state Supreme Court are below.
 
On April 7, 2016, a Forsyth County sheriff’s deputy received a BOLO dispatch (“Be on the Lookout”) for a dark colored SUV travelling on Georgia 400. According to the dispatch, the vehicle was driving erratically, unable to maintain lane, and had just been involved in a traffic accident. On State Route 20, the deputy spotted an SUV that had significant front end damage, was failing to maintain lane, and was riding on the driver’s side rim, causing sparks to fly. Upon merging into the right lane, the SUV hit multiple construction cones, running over one that became stuck under the vehicle and brought it to a stop in the middle of the road. Another deputy arrived on the scene, called for a tow truck, and began to talk to the SUV’s driver, Michael Richard Licata. The officer asked if Licata had recently been involved in a collision and Licata confirmed that he had. The deputy told Licata he wanted to talk to him about the accident, but first wanted to read him something. The deputy then read Licata his Miranda rights (“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”) After Licata responded that he understood his rights, the deputy questioned Licata about the accident.

The deputy then administered field sobriety tests but did not advise Licata that he did not have to perform the tests. After completing the tests, Licata was arrested and charged with driving under the influence (DUI). The deputy next read Licata the “implied consent notice,” which under Georgia Code § 40-5-67.1, states: “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia Driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.”
The officer then asked Licata if he would submit to a state administered breath test. Licata asked instead if he could retake the field sobriety tests, but the deputy said that was not an option and again asked if he would submit to the state’s breath test. He told Licata he had already determined it was not safe for Licata to be driving and his decision was not going to change. Licata asked what the implications of saying no were. The officer then re-read the implied consent notice. “Can I call my attorney?” Licata asked. “No, sir, you’re unable to at this point,” the deputy responded. “Your decision’s solely based on your decision. You’re not entitled to an attorney when it comes to making…” Licata asked the deputy what he suggested he do, but the deputy said he couldn’t offer legal advice. Licata ultimately responded that he would not submit to a breath test.

Following his arrest and before his trial, Licata’s attorney filed a motion to suppress the results of the field sobriety tests and evidence of his refusal to take a breath test. The Forsyth County state Court granted the motion. The trial court suppressed the field sobriety tests because Licata was in custody and had been read his Miranda rights, but the traditional Miranda warning omitted any reference to Licata’s right “not to act,” and therefore failed to adequately apprise Licata of his constitutional right against self-incriminating action. The trial court also suppressed evidence that Licata had refused to submit to a breath test because he had requested an attorney after having his Miranda rights read to him, which stated he had a right to an attorney.
The State then appealed to the Court of Appeals, which reversed the trial court’s decision, ruling that the trial court erred in concluding that Paragraph XVI of the Constitution required police officers to also give a warning that a suspect has the right not to perform acts. The intermediate appellate court concluded that the state Supreme Court’s 1998 opinion in Price v. State stands for the proposition that giving a Miranda warning to a suspect in custody is sufficient to render the tests admissible. The appellate court noted that the state Supreme Court has never addressed whether a Miranda warning is sufficient to apprise a defendant of the additional right against self-incrimination afforded by the state Constitution. And it suggested there may be tension between this Court’s Price decision and the state Constitution’s right against self-incrimination. The appellate court also concluded that the trial court erred in suppressing the refusal evidence, because a suspect is not entitled to the advice of a lawyer when asked to submit to a breath test and Licata’s decision to refuse to submit to the test could not have been based on a belief that he was entitled to an attorney because the deputy told him he wasn’t. Licata now appeals to the Georgia Supreme Court.

 
The new arguments in Monday's case are that Licata's lawyers say the Court of Appeals should not have reversed the suppression because the standard Miranda rights failed to advise Licata of his constitutional right to refuse to act in a way that would incriminate him. The State said first, there is no authority that requires officers to read Miranda warnings to those in police custody prior to requesting that they perform acts protected by the state Constitution's right against self-incrimination; second, the standard Miranda warning is enough to advise someone of their right not to incriminate themselves; third, a person is not entitled to legal counsel when asked to submit a breath test.
 
The arguments provided by the state Supreme Court are below.
 
Licata’s attorneys argue the Court of Appeals erred in reversing the suppression of Licata’s field sobriety test results because the standard Miranda warning failed to advise Licata of his constitutional right to refuse to act in a way that would incriminate him. The Georgia privilege against self-incrimination is more expansive than the federal privilege because the federal privilege is limited to oral testimony. The Georgia Constitution states that, “No person shall be compelled to give testimony in any manner to be self-incriminating.” “‘Testimony,’ however, has long been construed by Georgia courts to ‘embrace any evidence,’ and thereby prevents police from compelling a suspect to do an act which is incriminating in nature,” Licata’s attorneys argue in briefs. “Acts” that implicate the privilege when compelled include such things as production of a handwriting example and under the state Supreme Court’s 2017 decision in Olevik v. State, state breath tests. “In Olevik, this Court declined to reach the issue of whether a ‘Miranda-style prophylactic rule’” should be imposed to protect a suspect’s constitutional right against self-incrimination. “The answer to the question left open by Olevik is ‘yes,’” the attorneys argue. This is especially true in DUI arrests where self-incrimination actions such as field sobriety evaluations and chemical breath tests are central to law enforcement investigations, the attorneys contend. The Miranda warning read to Georgia suspects does not include the right to refuse to perform self-incriminating acts, and most Georgia suspects are not aware such a right exists. The attorneys also argue that following the Olevik ruling, “a Georgia suspect is entitled to the advice of counsel when he is asked to submit to a chemical breath test.” “In Georgia, an arrestee’s request to call his lawyer is an unequivocal invocation of the right to counsel,” they contend. 

The State, represented by the Solicitor General’s office, makes three arguments: First, there is no authority that requires officers to read Miranda warnings to individuals who are in police custody prior to requesting that they perform acts protected by the state Constitution’s right against self-incrimination. “The U.S. Supreme Court has specifically held that field sobriety evaluations are not testimonial in nature and therefore not protected,” the State argues in briefs. “There is no federal constitutional requirement to place an individual on notice of his state constitutional right to refuse field sobriety.” Second, the standard Miranda warning is sufficient to advise a suspect of his right not to be compelled to act in a way that incriminates himself. Third, after Olevik, an individual is not entitled to the advice of counsel when he is asked to submit to a breath test, the State contends. To accept Licata’s argument would introduce the impracticality of putting on hold breath testing until an attorney was available. “Unlike a lengthy interrogation where a subject is asked a number of questions, a breath test is very limited in scope,” the State argues. “A breath test asks the single question of how much did you have to drink tonight.”

The court will hear arguments Monday at 2 p.m.

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