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Nash v. Commonwealth5/21/1991
'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." Id. at 440.
In Berkemer, an officer observed McCarty's vehicle weaving along a highway, and forced McCarty to stop and get out of his vehicle. When McCarty complied, the officer noticed McCarty
was having difficulty standing and asked McCarty to perform a field sobriety test, which McCarty failed. The officer then asked McCarty if he had been using intoxicants and McCarty informed the officer that he had consumed two beers and had smoked some marijuana. The officer thereupon placed McCarty under arrest. 468 U.S. at 423. Based on these facts, the Court held McCarty was not taken into custody for Miranda purposes until the officer placed him under arrest, and therefore, McCarty's pre-arrest statements were admissible against him. Id. at 442.
In the present case, the facts are essentially identical to the facts in Berkemer, except that the officers found Nash a quarter of a mile from his vehicle and returned him to the accident scene. The record does not suggest Nash was forced or unwilling to return to the accident scene with Trooper Beck. Therefore, Officer Beck's action in returning Nash to the scene did not place Nash "in custody" or deprive Nash of his freedom in any significant way so as to transform the remainder of the investigation into a custodial interrogation that required Miranda warnings.
Regarding the remainder of the investigation, Trooper Keesee had reasonable suspicion that Nash committed a traffic violation since Nash's vehicle had run off the road. Thus, he was entitled to ask Nash a moderate number of questions to determine Nash's identity and to confirm or dispel his suspicions regarding the accident. As in Berkemer, Nash was simply asked for identification, whether he had consumed any alcohol, and to perform a field sobriety test, at the conclusion of which he was placed under arrest. Based on these facts and the Berkemer holding, we hold Nash's statements were properly admitted into evidence.
Nash also challenges the sufficiency of the evidence to sustain his conviction. "On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Ample evidence supports Nash's conviction. Nash smelled of beer, had bloodshot eyes, and admitted drinking five or six beers an hour before the accident. His performance during the field sobriety tests also suggested that he was
under the influence of alcohol. Finally, Nash's breath test disclosed a blood alcohol level of .15 percent by weight by volume. Combined with Nash's driving record, which indicates he was convicted of driving while intoxicated during the previous five year period, the evidence is sufficient to sustain Nash's conviction for driving under the influence of alcohol for the second time within a five year period.
For the foregoing reasons, we affirm the trial court's decision.
Affirmed.
Disposition
Affirmed.
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