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State v. Roberts9/8/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
Appellant Howard Jordan Roberts, Jr., was convicted after a jury trial of aggravated driving while under the influence of an intoxicant (DUI) while his license was suspended or revoked and aggravated driving with an alcohol concentration of.08 or more while his license was suspended or revoked. The trial court found that the state had proved beyond a reasonable doubt that appellant had a historical prior felony conviction. He was sentenced to concurrent terms of 4.5 years' imprisonment on each offense. He contends the trial court erred when it denied his motion to suppress statements he claims were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We affirm.
We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Powers, 200 Ariz. 123, , 23 P.3d 668, (App. 2001). A trial court's determination of a Miranda issue will not be disturbed on appeal absent an abuse of discretion. State v. Jones, 203 Ariz. 1, , 49 P.3d 273, (2002). We defer to the trial court on all factual matters, including the credibility of witnesses, and our review is restricted to considering the evidence presented at the suppression hearing. State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996); State v. Alvarado, 158 Ariz. 89, 92, 761 P.2d 163, 166 (App. 1988).
In November 2001, appellant was stopped by Officer James Kneup after the officer saw him traveling at a speed of almost sixty miles per hour in a thirty-five-mile-per-hour zone on Roger Road in Tucson and then saw him drive through a stop sign. Appellant was unable to produce proof of insurance or his vehicle registration and told the officer that his driver's license had been canceled. Officer Kneup noted that appellant's eyes were bloodshot and watery, his breath smelled of alcohol, and his speech was slurred. Kneup asked appellant if he had been drinking, and he said, " o." The officer also asked appellant whether he was sick, whether he had any physical defects, and whether he wore contact lenses. He answered these questions in the negative. The officer conducted a horizontal gaze nystagmus test, and appellant showed all siX cues of impairment. Appellant refused to perform two field sobriety tests involving balance and performed poorly on a memory test. He was then advised of his Miranda rights.
We find no merit to appellant's claim that everything he said before the officer gave him the Miranda warning should be precluded. Roadside questioning by the police of a motorist detained pursuant to a routine traffic stop does not constitute custodial interrogation for the purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440, 404 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334-35 (1984). An officer is permitted to ask a moderate number of questions to determine a person's identity and to try to obtain information confirming or dispelling the officer's suspicions that a crime has been committed. Berkemer.
Appellant was not in custody during the prearrest roadside questioning; the questions were moderate in number and were posed to obtain information confirming or dispelling the officer's suspicions. The trial court did not abuse its discretion in denying the motion to suppress appellant's statements.
Affirmed.
JOSEPH W. HOWARD, Judge
CONCURRING:
J. WILLIAM BRAMMER, JR., Presiding Judge
M. JAN FLOREZ, Judge
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