State v. McCurdy, 12981

• Citation: 100 Idaho 683,603 P.2d 1017
• Decision Date: 07 December 1979
• Docket Number: No. 12981,12981
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Michael Terrence McCURDY, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 1017

603 P.2d 1017

100 Idaho 683

The STATE of Idaho, Plaintiff-Respondent, v. Michael Terrence McCURDY, Defendant-Appellant.

No. 12981.

Supreme Court of Idaho.

Dec. 7, 1979.

Michael Terrence McCurdy, pro se, Jeff Stoker, Twin Falls, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Eugene A. Ritti, Deputy Atty. Gen., Boise, for plaintiff-respondent.

DONALDSON, Chief Justice.

Michael Terrence McCurdy (McCurdy) appeals his conviction for driving while intoxicated (DWI), repeated offense, which is a felony offense. We affirm.

On the evening of December 27, 1976 at approximately 8:30 p. m., an automobile accident occurred in the vicinity of Pierce Street and Filer Avenue in Twin Falls, Idaho. Officer Elliott, an off-duty policeman, heard the noise caused by the accident and went to the scene. He found McCurdy standing on the sidewalk next to a small white car, which was up against the curb. The car was extensively damaged. Officer Elliott testified that, upon approaching McCurdy, "he smelled quite strongly of alcohol, and was kind of staggering around. . . ." Elliott asked McCurdy if he were injured and upon receiving a negative reply, Elliott contacted the local police. After doing so, Elliott informed McCurdy that he was a police officer and that McCurdy should not smoke any cigarettes because Elliott "was sure the police wouldn't want him to do so. . . ."

Shortly afterward, Officer Belzer, the investigating officer, arrived and approached McCurdy. After observing McCurdy's clothing in disarray and noting his unsteadiness, he asked McCurdy if he was the driver of the damaged car, to which McCurdy replied that he was. Upon talking with McCurdy closely, Belzer testified he could smell a strong odor of alcohol on him, and upon making this observation, requested that McCurdy take some dexterity tests and an A-B-C recitation test. After giving McCurdy these tests, Belzer arrested McCurdy for DWI. After the arrest, McCurdy was informed of his Miranda rights and a Mobat breath analysis test was taken. The results of the breath test indicated that there was a .29 percentage of alcohol by weight in McCurdy's blood.

McCurdy was charged with DWI, repeated offense, and waived a preliminary hearing. In district court he entered a plea of not guilty to the charge. In February, 1978, a bifurcated jury trial was held ¹ and the jury returned a verdict of guilty against McCurdy for driving while intoxicated on February 2. The following day the jury heard testimony regarding McCurdy's prior convictions of DWI in Twin Falls County in 1972, in Power County in 1974 and in Jerome County in 1976. The court advised the jury there was insufficient evidence of the Power County conviction to go to the jury. The Twin Falls conviction of 1972 and the Jerome County conviction of 1976 did go to the jury and apparently on the basis of either or both convictions, the jury returned a guilty verdict against McCurdy for DWI, repeated offense. McCurdy's sentence was withheld and he was placed on probation for a period of eighteen months, subject to express terms and conditions. This appeal followed.

McCurdy challenges his conviction for four reasons, each of which we will address separately. First, McCurdy argues that Miranda warnings should have been given before the investigating officer asked him questions regarding the accident. Relying on State v. Wyman, 97 Idaho 486, 547 P.2d 531 (1976), McCurdy contends that his Miranda warnings should have been given at the time he became the "focal point" of the investigation at the time when he was advised by Officer Elliott not to smoke any cigarettes. Appellant argues that failure to give him his Miranda warnings at that time should result in suppression of all statements and evidence obtained from that point on.

We find this argument unpersuasive. Since the time this Court handed down its decision in Wyman, the United States Supreme Court has clarified the reach of Miranda warning requirements in several cases. Approximately two months after Wyman was handed down, the United States Supreme Court declared in Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) that Miranda warnings were required when a person had been taken into custody or otherwise significantly deprived of his freedom of action in any way.

The Court's position on the requirement of Miranda warnings was substantiated a year later in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Rather than calling for Miranda warnings when the defendant became the focal point of the investigation, the Court held that:

"Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' It was That sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited." 429 U.S. at 495, 97 S.Ct. at 714.

As a result, Miranda warnings were required only when McCurdy was in custody or significantly deprived of his freedom.

Accordingly, Wyman is overruled. Under the holdings of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams,407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Allgood, 98 Idaho 525, 567 P.2d 1276 (1977); and State v. Hobson, 95 Idaho 920, 523 P.2d 523 (1974), Officer Belzer was permitted to investigate his suspicions and establish McCurdy's identity. Such investigative questions can not be deemed "coercive." Fritts v. State, 443 P.2d 122 (Okl.Cr.1968). See State v. McClellan, 96 Idaho 569, 571, 532 P.2d 574, 576 (1975); State v. Sandoval, 92 Idaho 853, 856-58, 452 P.2d 350, 353-55 (1969).

Nor are Miranda Warnings required prior to the administration of dexterity tests, as argued by McCurdy. The privilege against self-incrimination refers only to communicative and not "real" evidence. State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), Cert. denied, 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1971). Following the landmark decision of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), most courts have held that Miranda warnings do not apply to protect a defendant who voluntarily submits to dexterity tests since these activities are not protected by the self-incrimination clause of the fifth amendment. Flynt v. State, 507 P.2d 586 (Okl.Cr.1973); State v. Bhattacharya, 18 Or.App. 327, 525 P.2d 203 (1974); State v. Cornell, 1 Wash.App. 425, 462 P.2d 949 (1969). Nor does Miranda apply to results obtained from a breathalyzer test. Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971). Thus, such evidence was properly admitted at trial.

McCurdy's second argument is that there was insufficient evidence of any prior DWI convictions to establish a felony charge against him on this occasion. McCurdy contends that before he could be found guilty of DWI, repeated offense, the jury would have to be convinced beyond a reasonable doubt that in prior proceedings he had been properly advised of his right to an attorney and that he had intelligently waived that right. McCurdy argues that the minute entries "informed of his right to counsel" and "defendant waived right to counsel" were left blank for both the Jerome County and Twin Falls County convictions and, as a result, a waiver of his rights from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Evidence of prior DWI convictions was thus insufficient.

This argument, too, is unpersuasive. McCurdy's Jerome County conviction resulted in a fine without any period of confinement. In such circumstances, there is no need to establish a right to counsel or a waiver of those rights. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530...