If the officer asks you to hang around…, you are not under arrest, and thus no Miranda warning required. In this case, the arresting officer responded to report of an “altercation” between Suspect and his female friend at a convenience store; the officer observed Suspect staggering and smelling of alcohol, the tire was flat and its rim and bumper were damaged. The Suspect told the officer he wanted to walk home but admitted having been driving the car. Even though the suspect clearly refused the officer’s first request for field sobriety tests, the Suspect finally gave in after attempting to walk away and being told to return to the car, at which point Suspect gave consent to the field sobriety tests. The issue for the Court was whether the Suspect was in “custody” and therefore entitled to be advised of his Miranda rights. The Ga Court of Appeals found the Suspect’s freedom was only temporarily curtailed pending the outcome of the investigation and therefore Miranda did not attach, pointing out the officer never told Suspect he was under arrest, never hand-cuffed him, never placed in the patrol car, and even turned his back on Suspect to talk to a second Deputy, all of which occurred during the first 8 minutes of the investigation. The Suspect later performed poorly on the field sobriety tests and was arrested for DUI. State v. Mosley, A12A1830. DID YOU KNOW THE ROADSIDE FIELD SOBRIETY TESTS ARE TOTALLY OPTIONAL? Call Ted D Morgan if you have been arrested for DUI.
