State v. Tyndall , 18 N.C. App. 669 ( 1973 )

197 S.E.2d 598 (1973) 18 N.C. App. 669

STATE of North Carolina
v.
Donald Ray TYNDALL.

No. 738SC99

Court of Appeals of North Carolina

July 11, 1973.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Donald A. Davis, Raleigh, for the State.

Douglas P. Connor, Mt. Olive, for defendant appellant.

HEDRICK, Judge.

The defendant contends the court erred in not striking the testimony of the Highway Patrolman that the defendant stated that he had been drinking. When the patrolman stopped the defendant, he asked him whether he had been drinking and the defendant made the admission complained of. Defendant argues that the challenged statement was inadmissible because the officer had not given him the "Miranda warnings". We do not agree. Under the circumstances of this case, the rules of Miranda have no application. State v. Beasley, 10 N.C.App. 663, 179 S.E.2d 820 (1971). This assignment of error is not sustained.

The defendant contends that he never waived his right to counsel and was not informed of his statutory rights under G.S. § 20-16.2(a) prior to the time he consented to take the breathalyzer examination. Before admitting into evidence the results of the breathalyzer test, the trial judge conducted a voir dire in the absence of the jury and made findings and conclusions that the defendant had been advised of his rights under the provisions of G.S. § 20-16.2(a) and that he waived those rights and consented to take the test. State v. Shadding, 17 N.C.App. 279, 194 S.E.2d 55 (1973). The findings made by the trial judge are supported by plenary competent evidence in the record. This assignment of error is overruled.

Defendant's trial in the Superior Court was free from prejudicial error.

No error.

BROCK and VAUGHN, JJ., concur.