Church v. Powell , 40 N.C. App. 254 ( 1979 )

252 S.E.2d 229 (1979) 40 N.C. App. 254

Claude Morris CHURCH
v.
Edward POWELL, Commissioner of Motor Vehicles.

No. 7823SC290.

Court of Appeals of North Carolina.

March 6, 1979.

Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen. Jean A. Benoy, Raleigh, for respondent-appellant.

No brief was filed for petitioner.

VAUGHN, Judge.

The judgment is not supported by either the evidence, which is uncontradicted, or the applicable law. In the first place, it is not necessary to reach the question of whether the patrolman should have advised petitioner of his Miranda rights before asking if his name was Morris Church and whether he was the owner and operator of the wrecked car. In the hearing we are now called upon to review the testimony that petitioner told the patrolman that he had been driving the car at the time of the wreck not only came without objection, it came voluntarily from the lips of the petitioner. It was, therefore, perfectly competent on the question of whether the patrolman had probable cause to believe that petitioner was operating the car at the time it was wrecked. Moreover, it is clear that petitioner's statement would not have been subject to exclusion at petitioner's criminal trial for the principal offense. It was only after petitioner admitted that he was driving the car when it wrecked and after the officer observed what he considered to be petitioner's intoxicated condition, that he was placed under arrest. The statement was not elicited as a part of a custodial interrogation, and the Miranda warnings were not required. See, e. g., State v. Sykes, 285 N.C. 202, 203 S.E.2d 849 (1974); State v. Carlisle, 25 N.C.App. 23, 212 S.E.2d 217, cert. den., 287 N.C. 261, 214 S.E.2d 433 (1975); State v. Tyndall, 18 N.C.App. 669, 197 S.E.2d 598, cert. den., 284 N.C. 124, 199 S.E.2d 662 (1973).

The court's conclusion that "[t]here is no evidence that the petitioner was under the influence of alcohol at 7:20 P.M. or at any other time material to this controversy," is not only inaccurate, it is to some degree irrelevant. At the revocation hearing, it was not the court's duty to try petitioner for the offense; the only question was whether the patrolman had probable cause to believe that petitioner had been driving while under the influence. Petitioner's own testimony shows the following. He had been drinking heavily on the day before the wreck. He had a drink at 4:00 p. m. and wrecked his automobile at 7:30 p. m. The patrolman saw him less than one hour after he had consumed an additional nine to twelve ounces of liquor, and he then told the patrolman he was driving the car when it wrecked. Surely these circumstances constituted some evidence to support the patrolman's affidavit (introduced without objection) that he had probable cause to believe that petitioner had operated an automobile while under the influence of alcohol.

The judgment from which respondent appealed is vacated, and the case is remanded.

Vacated and Remanded.

ROBERT M. MARTIN and ARNOLD, JJ., concur.