COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, McClanah an and Senior Judge Fitzpatrick Argued at Salem, Virginia

JOSHUA MICHAEL PRUITT MEMORANDUM OPINION ∗ BY v. Record No. 2921-06-3 JUDGE ELIZABETH A. McCLANAHAN FEBRUARY 5, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL Charles H. Smith, Jr., Judge Designate 1 Randall A. Eads for appellant. Virginia B. Theisen, Senior Assist ant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Joshua Michael Pruitt was convicted in a be nch trial of the felony offense of driving while intoxicated, a third offense within five years. On appeal, he argues the trial court erred in: (1) denying his motion in limine to prohibit introduc tion of the certificate of analysis of his breathalyzer test; (2) denying his motion to suppre ss introduction of his statement that he was the operator of the vehicle; and (3) fa iling to grant his motion to strike. We affirm the trial court.
I. BACKGROUND On appeal, we review the evidence in the “ light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted). That principle requires us to “‘discard the evid ence of the accused in c onflict with that of the

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Although the Honorable Charles H. Smith Jr ., Judge Designate, pres ided over the trial and entered the sentencing order, the Honorable Larry B. Kirksey presided over the hearing on the motion in limine in which the first two issues in this appeal were decided.- 2 - Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.’” Kelly v. Commonwealth , 41 Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) ( en banc ) (quoting Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998))

. So viewed, Officer Michael McCoy received a call to respond to an accident at the intersection of Euclid Avenue and Chester Street in Bristol. Th e call came in at 6:20 a.m., and he arrived at the scene at 6:26 am. The inters ection was close to a middle school, high school, a college, businesses, and reside ntial neighborhoods. The officer observed Pruitt’s vehicle had struck a telephone pole and knocke d the pole over so that it was blocking the entire eastbound flow of traffic on a major thoroughf are in the city. At the time Officer McCoy arrived, traffic was heavy and had begun to back up in the east bound lanes. Pruitt was the only person at the scene and was sitting in the driver ’s seat of his vehicle behind th e steering wheel with the keys in the ignition. The officer asked Prui tt to step out of the vehicle and present his driver’s license. When Pruitt did so, the officer detected the odor of alcohol and asked Pruitt to submit to field sobriety tests and a preliminary breath test. Prui tt performed poorly on the field sobriety tests. Also during this investigation, Officer McCoy as ked Pruitt if he was the operator and Pruitt replied that he was. Pruitt said he had been at a staff meeting at O’Charleys where the employees were allowed to drink, that he had left the restaurant early in the morning, and that was the last time he had any alcohol. He al so told McCoy he had fallen asleep on Euclid Avenue. No bottles or evidence of alcohol we re found in the car. McCoy arrested Pruitt for drunken driving at 6:35 am. McCoy transported Pru itt to jail and administered a breath test that measured Pruitt’s blood alcohol content as 0.15. His warrant was subsequently amended to the charge of felony offense of driving while in toxicated, third offense within five years.- 3 - Prior to trial, Pruitt moved in limine to prohibit introduction of th e breath test results and moved to suppress the statement th at he was the operator. He ar gued he was not arrested within three hours of the offense since the time of th e accident was unknown and his statement that he was the operator of the vehicle was made in violation of his Miranda rights. The trial court denied his motions. At trial, he moved to strike the evidence arguing the evidence was insufficient to show he was the operator or that he was intoxicated at the time of the offense. The trial court denied his motion to strike and found him guilty.
II. ANALYSIS On appeal, Pruitt contends the tria l court erred in denying his motion in limine to prohibit introduction of the results of his breath test a nd his motion to suppress the statement he was the operator of the vehicle. He also argues the trial court erred in denyi ng his motion to strike. A. Admission of Breath Test Results Pruitt argues the trial court should have exclude d the results of the breath test because the Commonwealth failed to prove what time the accide nt occurred and, thus, failed to prove he was arrested within three hours of committing the offense of driving while intoxicated. “The admissibility of evidence is within the broad disc retion of the trial court, and a ruling will not be disturbed on appeal in the absen ce of an abuse of discretion.” Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) (citing Coe v. Commonwealth , 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)). Under Code § 18.2-268.2, any person who operates a motor vehicle in Virginia is deemed to consent to chemical testing of his blood and breath if he is arre sted within three hours of the alleged offense. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway . . . in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath,- 4 - or both blood and breath taken for a chemical test to determine the alcohol . . . content of his blood, if he is arrested for violation of § 18.2-266 [driving while intoxicated] . . . within three hours of the alleged offense. Code § 18.2-268.2. If the defendant is not arrest ed within three hours of committing the offense of driving while intoxicated, the re sults of the breath or blood test are not admissibl e at trial. Bristol v. Commonwealth , 272 Va. 568, 575, 636 S.E.2d 460, 464 (2006) (citing Overbee v. Commonwealth , 227 Va. 238, 242-43, 315 S.E.2d 242, 243-44 (1984); Thomas v. Town of Marion , 226 Va. 251, 254, 308 S.E.2d 120, 122 (1983)). The circumstantial evidence supports the trial court’s finding that Pruitt was arrested within three hours of the offense. “Circumstantial evidence[,] when sufficiently convincing, is entitled to the same weight as direct evidence.” Riner v. Commonwealth, 268 Va. 296, 303-04, 601 S.E.2d 555, 558-59 (2004) (citing Derr v. Commonwealth , 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991); Epperly v. Commonwealth , 224 Va. 214, 228, 294 S.E.2d 882, 890 (1982)). Officer McCoy first received a call on Monday morn ing at 6:20 a.m. and reported to the accident scene at a busy intersection by 6:26 a.m. to find the eastbound lanes completely blocked. Traffic was beginning to back up at an area routinely patrolled. When Officer McCoy arrived, Pruitt was still inside his vehicle, seated behind the st eering wheel, with the keys in the ignition. Thus, it was reasonable for the trial court to conclude th e accident had occurred shortly prior to the call. See, e.g., Thomas , 226 Va. at 254, 308 S.E.2d at 122 (court concluding it was reasonable to infer an accident occurred at a bout the time of the call). 2 Since Pruitt’s arrest at 6:35 a.m. was well

2 Because we find the evidence was sufficient to support the time of the accident, and Pruitt admitted to operating the vehicle, we do not decide whether Pruitt was in physical control of the vehicle and still “operating” it when Officer McCoy arrived. See, e.g., Keesee v. Commonwealth , 32 Va. App. 263, 527 S.E.2d 473 (2000) (driver who was trapped in his vehicle after an accident was still “operating” it when the officer arrived on the scene where his key was still in the ignition and the car was in gear despite the fact that he was incapacitated); but cf

. Stevenson v. City of Falls Church , 243 Va. 434, 416 S.E.2d 435 (1992); see also United States v. Stephenson , 2007 U.S. Dist. LEXIS 60518 (W.D. Va. 2007).- 5 - within three hours of th e time the evidence establ ished the accident happened (and thus the time he committed the offense of driving while intoxicat ed), the trial court did not abuse its discretion in admitting the results of the breath test. 3 B. Admission of Pruitt’s Statement That He Was the Operator Pruitt argues the trial court should have suppr essed the statement he made to Officer McCoy that he was the operator of the vehicle because Officer McCoy failed to advise Pruitt of his Miranda rights. However, Miranda warnings are only required when the detainee’s freedom has been so restricted as to render him “in custody.” Oregon v. Mathiason , 429 U.S. 492, 495 (1977).
In Berkemer v. McCarty , 468 U.S. 420 (1984), the Court held that Miranda warnings are not required when an accused is detained pursuant to a lawful Terry stop. Id. at 439-40. In Nash v. Commonwealth , 12 Va. App. 550, 404 S.E.2d 743 (1991), we held a defendant was not “in custody” for purposes of Miranda when an officer investigating an accident found the defendant a quarter of a mile from the accid ent, returned him to the acciden t scene, asked fo r identification, asked whether he had consumed alcohol, and performed a field sobriety test. As in Nash , Officer McCoy was investigating an accident and in doing so requested Pruitt’s identification, asked him whether he had consumed alcohol, and asked h im to perform field sobriety tests. Officer McCoy’s suspicion that Pruitt was driving whil e intoxicated was confirmed, and Pruitt was arrested within ten minutes of Officer McCoy’s a rrival. Similarly, we conclude here that while Pruitt was detained in a Terry stop, he was not “in custody” when he told Officer McCoy he was

3 The holding in Overbee does not compel a different co nclusion. In that case, the defendant’s vehicle was in an em ergency lane and defendant was st anding in front of his vehicle when the officer found him. The hood of the car was raised, and the key had been removed from the ignition. There had been no call or report of an accident. There was no evidence of how long the vehicle had been there, and there was evidence defendan t had been drinking after his vehicle had stopped running. Overbee , 227 Va. at 240-41, 315 S.E.2d at 243.- 6 - the operator of the vehicle. 4 A reasonable person in Pruitt’s position would not have concluded “that his freedom was being curtailed to a de gree associated with a formal arrest.” Dixon v. Commonwealth , 270 Va. 34, 40, 613 S.E.2d 398, 401 (2005). Therefore, Officer McCoy was not required to inform Pruitt of his Miranda rights before his arrest and the trial court properly admitted Pruitt’s statement that he was the operator of the vehicle. C. Sufficiency of Evidence Pruitt argues the trial court erred in failing to grant his motion to strike because the Commonwealth failed to prove he was operating the vehicle while intoxicated. In reviewing the sufficiency of the evidence, “the judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict.” Saunders v. Commonwealth , 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991) (citation and in ternal quotations mark s omitted). “[T]he trial court’s judgment will not be set aside unle ss plainly wrong or without evidence to support it.” Hunley v. Commonwealth , 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). “The credibility of a witness and the inferences to be drawn from proven facts are matters solely for the fact finder’s determination.” Marable v. Commonwealth , 27 Va. App. 505, 509, 500 S.E.2d 233, 235 (1998). “In its role of judging witness cr edibility, the fact fi nder is entitled to disbelieve the self-serving testimony of the accuse d and to conclude that the accused is lying to conceal his guilt.” Id. at 509-10, 500 S.E.2d at 235. “This Cour t does not substitute its judgment for that of the trier of fact.” Hunley , 30 Va. App. at 559, 518 S.E.2d at 349.

4 Pruitt does not argue he was “in custody” but argues he was “sei zed” because Officer McCoy retained his driver’s lic ense. Pruitt was no doubt seized as he was the subject of a Terry stop, and we have held that retention of a driver’s license does constitute a seizure, Piggott v. Commonwealth , 34 Va. App. 45, 537 S.E.2d 618 (2000), but as we point out here, Miranda rights, which were developed to protect the Fifth Amendment privilege against self-incrimination, are not applicable to a seizure within the meaning of the Fourth Amendment. Pruitt does not argue Officer McCoy lacked reas onable suspicion required for the seizure.- 7 - Pruitt makes two arguments: First, Pruitt ar gues the evidence was insufficient to prove he was the operator of the vehicle; second, he argues the evidence was insufficient to prove he was intoxicated at the time of the alleged offens e. Both contentions are without merit. The evidence was sufficient to establish the time of the accident. When Officer McCoy arrived, Pruitt was still in the driver’s seat with the key in the ignition. Pr uitt’s statement that he was the operator was properly admitted. Thus, the evidence sufficiently proved he was the operator of the vehicle at the time of the acc ident. We also conc luded the results of his breath test were properly admitted, and the officer testified as to Pru itt’s conduct at the scene leading to his arrest. Therefore, the evidence was also sufficient to support the finding he was intoxicated at the time of the accident and, thus, operated his vehicle wh ile intoxicated. Accordingly, we affirm his conviction. Affirmed.