State v. Pitman

• Citation: 427 N.W.2d 337
• Decision Date: 19 July 1988
• Docket Number: No. 870388,870388
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Michael J. PITMAN, Defendant and Appellant. Crim.
• Court: United States State Supreme Court of North Dakota

Page 337

427 N.W.2d 337

STATE of North Dakota, Plaintiff and Appellee, v. Michael J. PITMAN, Defendant and Appellant.

Crim. No. 870388.

Supreme Court of North Dakota.

July 19, 1988.

William Kirschner & Associates, Fargo, for defendant and appellant; William Kirschner (argued).

Melody R.J. Jensen (argued), Asst. States Atty., Fargo, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

Michael J. Pitman appeals from a judgment of conviction for driving a motor vehicle while under the influence of intoxicating liquor in violation of section 39-08-01(1)(b), N.D.C.C. ¹ We affirm.

On October 2, 1987, at approximately 7:05 a.m., Officer Brumfield of the North Dakota Highway Patrol discovered a one-car accident on Interstate Highway No. 94 near Fargo, North Dakota. Officer Brumfield was not summoned to the accident, but an ambulance unit and fire truck were at the scene when he arrived.

In his deposition Officer Brumfield described the accident scene as follows:

"A. I stopped the patrol car and as I recall the fire chief or captain came and talked to me and told me what was going on. The vehicle was on the trees. They pointed out which one the driver of the vehicle had been. I went down and talked with him and identified him as Michael Pitman, and we had some conversation about him driving the car and then I took him up to the patrol car.

"Q. So he was out of the vehicle at that time?

"A. Yes, he was.

"Q. Do you recall what conversation you had with him at that time?

"A. I asked him if he was the driver of the vehicle at the time that the accident occurred. He told me he was. Like I say, then we went on up to the control [patrol] car to write up the accident."

Brumfield then questioned Pitman about the accident inside his police vehicle. Pursuant to a preprinted accident report form, ² Brumfield asked Pitman when the accident occurred. Pitman told Brumfield that the accident occurred at approximately 6:50 a.m.

As Officer Brumfield completed the report he detected an odor of alcohol and noticed Pitman's eyes were bloodshot and that Pitman had difficulty speaking. Suspecting that Pitman was intoxicated, Brumfield gave Pitman a preliminary screening test known as an alcohol level evaluation roadside test (A.L.E.R.T.). Pitman failed the test. Pitman was then placed under arrest for driving under the influence of an intoxicating liquor. An intoxilyzer test administered at a Cass County law enforcement facility indicated Pitman's blood alcohol content was .17%. At no time did Officer Brumfield recite to Pitman his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Pitman was charged alternatively with driving under the influence of an intoxicating liquor or driving with a blood-alcohol concentration of at least ten one-hundredths of one percent (.10%), in violation of section 39-08-01(1)(a) or (1)(b). Pitman filed a pre-trial motion:

"1. To suppress all statements made by the Defendant after his arrest because the Defendant was in custody and was the subject of interrogation and, in addition, the Defendant was never given his rights under Miranda v. Arizona, nor did he waive such rights.

"2. Suppressing evidence of the chemical test of the Defendant because there is no evidence to show that the Defendant was tested within two hours of his driving or of being in physical control of his motor vehicle as required by Chapter 39-20 of the North Dakota Century Code.

"3. Dismissing Count Ia of the Complaint against the Defendant because there is no probable cause to believe that the Defendant had a blood alcohol concentration of at least 0.10% by weight at the time of the performance of the chemical within two hours of driving.

"4. Suppressing all evidence of prior convictions of the Defendant because there is no evidence that, at the time of the entry of such convictions, the Defendant was represented by counsel or validly waived such representation; that the Defendant was granted a jury trial or validly waived such jury trial; that the Defendant confronted the witnesses against him or validly waived such right to confrontation; and that the Defendant entered a guilty plea and, at the time of such entry of said plea, did so knowingly, intelligently, and with full knowledge of the all potential consequences of said plea.

"5. ... to suppress all evidence gathered by the police after the administration by Officer Brumfield of the preliminary breath test or ALERT test because such test was given on less than probable cause and, therefore, is in violation under the fourth amendment to the United States Constitution and article 1, section 8 of the North Dakota Constitution as an unreasonable search and all evidence gathered therefrom is the fruits of such unreasonable search."

The Cass County court denied all parts of Pitman's pre-trial motion. With court approval Pitman then entered a conditional plea of guilty for driving while under the influence of an intoxicating liquor pursuant to Rule 11(a)(2) of the North Dakota Rules of Criminal Procedure. ³ We address all of Pitman's contentions in the order in which they appear in his pre-trial motion.

I

Pitman first contends his pre-arrest statement in which he admitted that he was the driver of the vehicle must be suppressed because he was not given his Miranda warnings. We disagree.

Pitman's principal objection involves the questioning in the police vehicle:

"The officer interrogated the Defendant while the two men were in the squad car. The interrogation elicited various incriminating statements from the Defendant. For instance, the Defendant admitted having been the driver of the vehicle at the time of the accident. Also, the Defendant gave the officer an estimate as to the time of the accident."

We need not consider the admissibility of the incriminating statement made in the patrol car because, as Officer Brumfield's deposition reflects, Pitman was identified as the driver of the vehicle before Officer Brumfield came upon the scene and apparently admitted being the driver before entering the patrol car. As Miranda warnings were not necessary when Brumfield initially questioned Pitman outside the patrol car and confirmed that he was the driver, we need not consider whether or not Miranda warnings should have been given inside the patrol car when Officer Brumfield asked the same question.

Miranda warnings are required when, and only when, the defendant is being subjected to a custodial interrogation. Custodial interrogation was defined in Miranda as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 86 S.Ct. at 1612. The Miranda holding does not affect "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process...." Miranda, supra, 86 S.Ct. at 1629. See also State v. Skjonsby, 319 N.W.2d 764, 786 (N.D.1982).

The Miranda court left to the courts of each jurisdiction the duty to define when a defendant is "otherwise deprived of his freedom of action in any significant way." 86 S.Ct. at 1612. See, e.g., State v. Tellez, 6 Ariz.App. 251, 431 P.2d 691, 696 (1967) (Miranda warnings apply when officer has "reasonable grounds" to believe motorist has committed offense); Newberry v. State, 552 S.W.2d 457, 461 (Tex.Crim.App.1977) (Miranda applies when officer has probable cause to arrest driver and officer considers driver in custody); State v. Sykes, 285 N.C. 202, 203 S.E.2d 849, 850 (1974) (Miranda warning not applicable until formal arrest or functional equivalent); United States v. Alvarado Garcia, 781 F.2d 422 (5th Cir.1986) (Fifth Circuit employs a four factor test in determining whether Miranda warnings are necessary).

We have confronted the question of when Miranda applies in several cases. See State v. Berger, 329 N.W.2d 374, 376 (N.D.1983); State v. Skjonsby, 319 N.W.2d 764 (N.D.1982); and State v. Fields, 294 N.W.2d 404 (N.D.1980). In these cases we have distinguished "custodial interrogation" from "general on-the-scene" investigatory questioning.

In State v. Fields, supra, we rejected the principle that Miranda warnings are triggered when the investigation of an offense focuses on the defendant. The defendant in Fields was questioned by an officer at the hospital. The officer asked the defendant if he was the driver of the vehicle at the time of the accident. The defendant responded yes.

We analyzed the need for Miranda warnings in Fields as follows:

"Here, when Officer Heinen asked Fields if he was driving the car at the time of the accident, he was not in custody nor deprived of his freedom by the authorities in any significant way. His detention at the hospital resulted from medical advice, not from any action of the authorities. Officer Heinen contacted Fields at the hospital as part of the accident investigation. He went to check the condition of the driver and, if necessary, to have a blood-alcohol test conducted. Fields was not taken to the hospital by the officer but by a friend. Officer Heinen's question was asked at the hospital in the presence of this friend and a nurse on duty. In view of these facts, we conclude that Field's answer was not the result of a custodial interrogation in the police-dominated atmosphere. Thus the failure to advise Fields of his Miranda rights prior to asking him if he was the driver of the car at the time of the accident does not make his answer inadmissible, and the trial court erred in suppressing it." 294 N.W.2d at 408.

In essence the only significant factual distinction between the facts in Fields and the facts pertaining to what occurred outside the patrol car of this appeal is that Pitman was asked whether or not he was the driver at the scene of the accident rather than at a hospital. We do not believe this factual distinction has any legal significance for purposes...