McClendon v. State

• Decision Date: 04 September 1991
• Docket Number: No. A91A1433,A91A1433
• Parties: McCLENDON v. The STATE.
• Court: Georgia Court of Appeals

Page 760

410 S.E.2d 760

201 Ga.App. 262

McCLENDON v. The STATE.

No. A91A1433.

Court of Appeals of Georgia.

Sept. 4, 1991.

Reconsideration Denied Sept. 20, 1991.

Theron M. Moore, Perry, for appellant.

Ralph T. Bowden, Jr., Sol., J. Cliff Howard, Andrew Rogers, Asst. Solicitors, for appellee.

BIRDSONG, Presiding Judge.

Johnny Eugene McClendon appeals his judgment of conviction of DUI and driving with an unlawful alcohol concentration in violation of OCGA § 40-6-391(a)(1) and (4), respectively.

A county police officer observed a Camaro automobile stopped in the emergency lane of an entrance ramp on I-285; the brake lights of the car were on but no one could be seen inside the vehicle. As the officer approached the car, he observed appellant unconscious and slumped across the front seat; he noticed that the car's engine was running and the car was in "drive." Before appellant awoke, the officer smelled a strong odor of alcohol coming from appellant and his car. For approximately five minutes the officer attempted to awake appellant by shaking and pushing him and by talking loudly to him. After appellant awoke and became relatively oriented, he was asked if he were okay, as the officer was going to call an ambulance. After being told appellant was okay, the officer asked him for his driver's license and inquired as to whether he had been drinking. Appellant admitted he had been drinking and was then asked to exit the car and perform certain field sobriety evaluation tests, which he failed. At the point where appellant exited the vehicle, he was no longer free to go; after failing the sobriety tests, appellant was placed under arrest for DUI and transported to the county law enforcement office. During transport, appellant begged the officer not to arrest him and stated he had stopped because he could not go on any further as he was too intoxicated. Subsequently, appellant was given a breath test, which showed a result of .14 grams percent.

Held:

1. Appellant contends the trial court erred in admitting both his initial statement that he had been drinking and his subsequent statement that he had stopped because he was too intoxicated to drive any further, as he had not made an intelligent and knowing waiver of his Miranda rights.

(a) "When a violator is placed in custody or under arrest at a traffic stop the protection of Miranda arises; however, roadside questioning at a routine stop does not constitute such a custodial situation." Lebrun v. State, 255 Ga. 406, 407(3), 339 S.E.2d 227; compare Dixon v. State, 196 Ga.App. 15, 18(8a), 395 S.E.2d 577; Griffin v. State, 191 Ga.App. 302, 303(2), 381 S.E.2d 562; Hall v. State, 188 Ga.App. 322, 373 S.E.2d 32. " 'The test for determining whether a person is "in custody" at a traffic stop is if a reasonable person in the suspect's position would have thought the detention would not be temporary. [Cits.]' " Crum v. State, 194 Ga.App. 271, 272, 390 S.E.2d 295; accord Hughes v. State, 259 Ga. 227, 228, 378 S.E.2d 853.

The initial statement made by appellant to the officer in response to a question as to whether he had been drinking is admissible. The uncontroverted evidence of record shows the initial statement by appellant was made at a time when appellant was neither under arrest nor in custody within the meaning of Crum. Appellant's initial admission that he had been drinking was made in response to roadside questioning during a routine traffic stop. Lebrun, supra; see also Harper v. State, 193 Ga.App. 551(1), 388 S.E.2d 379.

Further, " '[o]n appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court's findings must be adopted unless determined to be clearly erroneous.' " Crum, supra, 194 Ga.App. at 272, 390 S.E.2d 295. If a portion of the trial court's findings is erroneous and a portion of the findings is not clearly erroneous, that portion not clearly erroneous will be adopted by the appellate courts. The portion of the trial court's findings that would include a finding that the first statement of appellant admitting he had been drinking was made when appellant was not in "custody," was not clearly erroneous, and accordingly the findings to this extent are hereby adopted by this court.

(b) The statements made by appellant, begging the officer not to place him under arrest and admitting he stopped because he was too intoxicated to go any further, are shown by the record to have been made while appellant was in custody within the meaning of Crum. However, the evidence of record establishes that these statements were made by appellant voluntarily and not in response to any form of custodial questioning and interrogation. "[T]he necessity of administering Miranda warnings exists only when the individual is interrogated while in custody." Ramos v. State, 198 Ga.App. 65, 66(2), 400 S.E.2d 353. As the record establishes that after appellant was in custody he was not interrogated by the officer, the Miranda warning was not required. Cash v. State, 224 Ga. 798, 799(1), 164 S.E.2d 558; Brown v. State, 183 Ga.App. 476, 478(2), 359 S.E.2d 233. We will not reverse the correct ruling of the trial court regardless of the reason given therefore. Ely v. State, 192 Ga.App. 203(4), 384 S.E.2d 268.

2. The Supreme Court of Georgia has recently held that "trial courts may take judicial notice that the Intoximeter 3000 machine test results are based on accepted scientific theory or 'rest upon the laws of nature'; and, when the statutory requirements for admissibility are met, the results may be admitted into evidence without expert testimony regarding...