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

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 26, 2017




In the Court of Appeals of Georgia
 A17A1200. THE STATE v. LICATA.

      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.




                                          2
Mitchell v. State, __ Ga. __ (__ SE2d __) (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



                                           3
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 me.
         OFFICER: It pulled out in front of you?
         LICATA: Yes, sir.
         OFFICER: Okay. I’d like to continue talking to you about that and
         some more things but before I do, let me read you something here, okay?
         LICATA: Understood.
         OFFICER: This is your Miranda warning, okay. 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 talk to a lawyer and have him or her
         present with you while you’re being questioned. If you cannot afford to
         hire a lawyer, one will be appointed to represent you before any
         questioning, if you wish. You can decide at any time to exercise these
         rights and not answer any questions or make any statements. Do you
         understand each of these rights?
         LICATA: Yes, sir.
         OFFICER: Okay.

The arresting officer asked Licata questions about the accident and whether Licata

had been drinking.

                                            4
       The officer then had Licata complete standardized field sobriety tests, which

are at issue.

       Licata was arrested after he finished the field sobriety tests.

       There followed the conversation leading up to Licata’s refusal to submit to the

breath test, which is also at issue. The officer explained that he had determined that

Licata was a less safe driver. He handcuffed Licata and informed him that he was

going to read Licata Georgia’s Implied Consent Notice for Persons 21 and over, and

that he needed to know what Licata’s answer would be. The arresting officer correctly

read the notice. He concluded with the question, “Will you submit to the state-

administered chemical test of your breath under the Implied Consent law?” Licata

responded by asking the arresting officer if the officer could re-administer the tests.

The arresting officer responded that they were past that part and that he already had

determined that Licata was less safe to drive and his decision was not going to

change. The officer explained that he was asking whether Licata would submit to the

state breath test that he was requesting. Licata asked, “And the ramification if I don’t

. . . .” The arresting officer responded, “would you like me to re-read you that notice

‘cause it says what happens if you do, what happens if you don’t, okay?” Licata said



                                           5
he would, and the arresting officer re-read the Implied Consent notice. The following

exchange then occurred:

      LICATA: Can I call my attorney?
      OFFICER: No sir, you’re unable to at this point. Your decision’s solely
      based on your decision. You’re not entitled to an attorney when it comes
      to making . . .
      LICATA: So if I blow this test and I pass the test, I’m free to go?
      OFFICER: No, sir. Whether you submit to the test or not, you’re still
      going to be placed under arrest for DUI. The outcome of that isn’t going
      to change. Whatever the number that you blow, is the number you blow
      and that gets handled in court. But as far as the outcome for right now,
      you’re still going to go to Forsyth County jail. But it’s your choice
      whether you want to submit to the test or not.
      LICATA: But there’s no choice. . . . I mean there’s no. . . . What do you
      suggest?
      OFFICER: I can’t suggest anything, sir, you’re a grown man, this is
      your choice. I’m not allowed to. I can’t give you any legal advice.
      LICATA: And I can’t take these tests again?
      OFFICER: No, sir. We’ve moved past that point. I’ve already made my
      determination that you are less safe to drive.
      LICATA: Are you sure?
      OFFICER: Sir, if I had any doubt, you wouldn’t be standing in the
      handcuffs right now.
      LICATA: I see. Okay. Um. Can I get my phone and call my attorney?
      OFFICER: You can get your phone but you’re not entitled to a phone
      call with your attorney right now, okay, so you have to make that
      decision on your own, whether or not you will submit to the state breath
      test that I’m requesting.
      LICATA: No, I guess I just won’t.
      OFFICER: Okay. So you’re going to refuse?
      LICATA: Yes.
      OFFICER: Okay.


                                         6
       2. Field sobriety tests.

       The state argues that the trial court erred in suppressing the results of Licata’s

field sobriety tests. The trial court found that Licata was in custody, and although the

arresting officer had read Licata a correct Miranda warning, the officer did not inform

Licata of his right to refuse to perform physical acts as protected by Art. I, Sec. I, Par.

XVI of the Georgia Constitution of 1983. The court therefore granted Licata’s motion

to suppress the results of the field sobriety tests.

       Pretermitting whether Licata was in custody at the time he performed the field

sobriety tests, we find that the trial court erred in holding that the Georgia

constitution requires law enforcement officers to give a warning beyond the Miranda

warning to encompass the right not to act under the Georgia constitution.

       It is true, as the trial court recognized that “[w]hile the language in the United

States Constitution has long been construed to be limited to ‘testimony’ the Georgia

Constitution has been construed to limit the [s]tate from forcing the individual to

present evidence, oral or real.” Creamer v. State, 229 Ga. 511, 516 (3) (192 SE2d

350) (1972) (emphasis supplied). And it is true that the Miranda warning addresses

only the right to remain silent. And it is true that our Supreme Court has never



                                            7
addressed the argument that a Miranda warning is therefore insufficient to apprise of

the additional rights afforded by the Georgia Constitution.

      But in Price v. State, 269 Ga. 222 (498 SE2d 262) (1998), our Supreme Court

held that under Georgia law, an arresting officer’s failure to give Miranda warnings

to a suspect in custody rendered evidence of field sobriety tests inadmissible. Id. at

224-225 (3). The court explained that it was upholding Price’s rights under the

Georgia constitution — that the outcome would have been different had the appellant

raised only a federal challenge to the admission of the field-sobriety-test evidence,

“because under the U.S. constitution the prohibition against self-incrimination applies

only when the evidence is ‘testimonial’ and field sobriety tests are not ‘testimonial’

in nature.” Id. at 225 (3) n. 13. So Price stands for the proposition that, under Georgia

law as well as federal law, a Miranda warning to a suspect in custody is sufficient to

render evidence of field sobriety tests admissible. See also State v. Dixon, 267 Ga.

App. 320, 320-321 (2004) (“Under Georgia’s protections against the [s]tate

compelling an arrestee to give evidence against himself, the result of a field sobriety

test performed when a suspect was ‘in custody’ will be admissible only if the request

to perform the field sobriety test was preceded by Miranda warnings.”); State v.

O’Donnell, 225 Ga. App. 502, 504 (2) (484 SE2d 313) (1997) (whole court 9) (“field

                                           8
sobriety tests given to a person under arrest, without giving him or her a Miranda

warning first, are inadmissible under” former OCGA § 24-9-20 (a), a statute that

encompassed the Georgia constitutional right against performing self-incriminating

acts and which is now codified at OCGA § 24-5-506 (a)). For these reasons, the trial

court erred by granting Licata’s motion to suppress the results of his field sobriety

tests.

         We acknowledge that there is at least arguably tension between our Supreme

Court’s opinion in Price and Art. I, Sec. I, Par. XV of the Georgia Constitution of

1983, as it has been construed in cases like Creamer, supra. But whether any such

tension is to be resolved by narrowing the holdings of Price and similar cases is up

to our Supreme Court.

         3. Refusal to submit to the breath test.

         The trial court found that Licata requested an attorney pursuant to the Miranda

warning and so his refusal to submit to the state-administered breath test should be

suppressed.1 We disagree because the arresting officer was legally correct and

         1
        In essence, the trial court adopted the “confusion doctrine,” a judicially-
created exclusionary rule under which “a licensee’s refusal to submit to a breath test
will be excused if, due to a prior administration of the Miranda warnings, the licensee
believes that he or she had the right to consult with counsel prior to taking a breath
test.” Kurecka v. State, 67 So. 3d 1052, 1056 (Fla. Dist. Ct. App. 4th Dist. 2010)

                                             9
explicitly clear that Licata did not have the right to consult an attorney before

deciding whether to submit to the breath test.

      An individual is not entitled to the advice of counsel when he is asked to

submit to a breath test under the Georgia Implied Consent Law. Rackoff v. State, 281

Ga. 306, 308-309 (1) (637 SE2d 706) (2006). “Access to advice of legal counsel at

the appropriate time is a right to which the defendant is entitled.” Viau v. State, 260

Ga. App. 96, 101 (3) (579 SE2d 52) (2003) (citations omitted; emphasis supplied).

Here, “[n]othing in the record demonstrates that the officer somehow misled [Licata]

to believe that [he] was entitled to an attorney at the time of the breath test.” Id. At

the beginning of their encounter, the arresting officer did inform Licata that he had

“the right to talk to a lawyer and have him or her present with [him] while [he was]

being questioned” and that Licata could “decide at any time to exercise [his] rights.”

But he twice clarified that Licata was not entitled to consult an attorney regarding

whether to submit to the state-requested breath test and that he had to make that

decision himself.




(citation and punctuation omitted).


                                          10
      Licata cites State v. Boger, 253 Ga. App. 412 (1) (559 SE2d 176) (2002), to

support his position that the arresting officer’s reading of the Miranda warning

confused him about his rights and required the exclusion of evidence of his refusal

to take the state-requested breath test. On the contrary, Boger supports the denial of

his motion to suppress. In Boger, the arresting officer tried to get Boger to properly

breathe through an alco-sensor but failed several times. Id. at 412 (1). Boger then

stated that he needed to speak with a lawyer. Id. at 413 (1). The officer informed him

that he could have a lawyer after the officer arrested him and took him to jail. Id.

Boger responded, “Let’s do it that way,” so the officer arrested him, read him his

implied consent rights, and took him to jail, where Boger refused to submit to an

breath test without an attorney. Id. at 413 (1) & (2).

      We held that Boger’s refusal to submit to the breath test at the jail was properly

suppressed because the officer’s statement that Boger could have a lawyer “after I

arrest you and take you down to the jail” could have mislead Boger into incorrectly

believing that he was entitled to counsel prior to completing the breath test. Id. at 413

(2). In contrast, as for the exclusion of evidence that Boger failed to complete the

alco-sensor breath test, we held that



                                           11
         [t]he officer’s explanation informed Boger that he was not entitled to an
         attorney when the officer repeatedly requested that he breathe into the
         alco-sensor, but that he could have an attorney once he was arrested and
         taken to jail. Therefore, Boger’s refusal to continue the alco-sensor test
         could not have been based on a belief that he was entitled to an attorney
         prior to taking the test. The court erred in excluding evidence of Boger’s
         failure to submit to the alco-sensor test . . . on this basis.


Id. at 413 (1). Similarly, in this case, the arresting officer’s explanation informed

Licata that he was not entitled to consult an attorney when deciding whether to submit

to the breath test. Therefore, Licata’s refusal to submit to the state-requested breath

test could not have been based on a belief that he was entitled to an attorney prior to

taking the test. The trial court erred in excluding evidence of Licata’s refusal on this

basis.

         Judgment reversed. Bethel, J., concurs fully in Divisions 1 and 3, and specially

in Division 2. Branch, J., concurs fully in Division 1 and in the judgment only in

Divisions 2 and 3.




                                              12
 A17A1200. THE STATE v. LICATA.

      BETHEL, Judge, concurring specially.

      I concur fully in Divisions 1 and 3 of the Presiding Judge’s opinion. I do not,

however, agree with all that was expressed in Division 2 and therefore concur

specially with that portion of the opinion.

      The Supreme Court’s decision in Price v. State1 answers the question addressed

in Division 2. In Price, the Supreme Court held that “under Georgia law Miranda

warnings must precede a request to perform a field sobriety test only when the suspect

is in custody.” Price, 269 Ga. at 225 (3) (punctuation and footnote omitted). Thus, as

the majority correctly determined, where as here, a proper Miranda warning is given

prior to the administration of a field sobriety test, the results of such test are



      1
          269 Ga. 222, 224-25 (3) (498 SE2d 262) (1998).
admissible regardless of whether the suspect was in custody at the time. Because

Price is binding upon this Court, we need not look beyond its core holding in

addressing this question. Our state’s law on this issue, as announced by the Supreme

Court is clear and settled.




                                         2
