                   COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia


JESSE LEE BOLIN
                                      MEMORANDUM OPINION * BY
v.   Record No. 0954-94-2           CHIEF JUDGE NORMAN K. MOON
                                         AUGUST 29, 1995
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                      Thomas V. Warren, Judge

           John L. Squires, III, for appellant.
           Margaret Ann B. Walker, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief) for appellee.



      Jesse Lee Bolin appeals from his conviction for driving

under the influence of alcohol in violation of Code § 18.2-266.

Bolin contends that the trial judge erred in refusing to suppress

a certificate of breath analysis and statements Bolin made to

police prior to his arrest.    We affirm the conviction.

      The evidence proved that State Police Trooper J.A. Olinger

received a radio call at 10:35 p.m. reporting an automobile

accident in Powhatan County.    When she arrived at the scene, the

officer found an automobile in a ditch by the side of the road.

Bolin's mother testified that Bolin arrived home that evening and

told his parents that he had been in an automobile accident.     His

parents left to retrieve the automobile and discovered a number

of police at the scene.     Bolin's father remained at the accident

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
site, and his mother returned home.

        Later, two uniformed deputy sheriffs arrived with Bolin's

father to their home.    Bolin testified that he was told by the

deputies to accompany them to the accident scene and that he

believed that he was not free to refuse the deputies' demand.

His mother testified that Bolin was asked to accompany the

deputies and that he complied.    Bolin was not handcuffed and was

transported in the rear of the deputies' vehicle to the accident

site.
        Trooper Olinger testified that when Bolin arrived at the

accident site, his eyes were bloodshot and glassy, he smelled of

alcohol, and he stumbled out of the vehicle.    The officer asked

Bolin if he had been driving the automobile at the time of the

accident, what time the accident occurred, and whether he had

consumed any alcohol before or after the accident.    The officer

testified that Bolin had admitted that he was driving the

automobile at the time of the accident, that the accident had

occurred thirty minutes prior to his return, and that he had

consumed one beer before and none after the accident.    After

Bolin poorly performed several field sobriety tests, the officer

arrested Bolin at 11:55 p.m. and advised him of his rights.

Bolin took a breath test at 1:10 a.m.

        Bolin argues that the trial judge erred in refusing to

suppress the certificate of blood analysis and his statements

because he was in custody and had not been given Miranda warnings




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at the time he was interrogated.     Furthermore, Bolin argues that

the trial judge erroneously based his ruling on the officer's

subjective belief that Bolin was free to leave up until the time

he was arrested.

     When a suspect is subjected to "custodial interrogation,"

Miranda warnings are required.      Miranda v. Arizona, 384 U.S. 436,

444 (1966).   Custodial interrogation is "questioning initiated by

law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any

significant way."     Id.   "The totality of circumstances must be

considered in determining whether the suspect is in custody when

questioned, but the 'ultimate inquiry is simply "whether there is

a formal arrest or restraint on freedom of movement" of the

degree associated with a formal arrest.'"      Wass v. Commonwealth,

5 Va. App. 27, 32, 359 S.E.2d 836, 839 (1987) (citations

omitted).

     The judge believed the mother's testimony that Bolin was

asked to accompany the police officers to the accident site.

"The [fact finder] 'had the right to accept the evidence of one

witness and to reject that of the defendant.'"      Bryant v.

Commonwealth, 10 Va. App. 421, 427, 393 S.E.2d 216, 220 (1990)

(citation omitted).    Bolin was also not restrained in any manner.

Thus, there is no evidence that Bolin's freedom of action was

restricted in any way.      He voluntarily went to the accident scene

with the two deputies.      See Nash v. Commonwealth, 12 Va. App.




                                  - 3 -
550, 553, 404 S.E.2d 743, 744 (1991).
          Any interview of one suspected of a crime by
          a police officer will have coercive aspects
          to it, simply by virtue of the fact that the
          police officer is part of a law enforcement
          system which may ultimately cause the suspect
          to be charged with a crime. But police
          officers are not required to administer
          Miranda warnings to everyone whom they
          question. Nor is the requirement of warnings
          to be imposed simply because the questioning
          takes place in the station house, or because
          the questioned person is one whom the police
          suspect. Miranda warnings are required only
          where there has been such a restriction on a
          person's freedom as to render him "in
          custody." It was that sort of coercive
          environment to which Miranda by its terms was
          made applicable, and to which it is limited.


Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

     "[T]he initial determination of custody depends on the

objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers or

the person being questioned."    Stansbury v. California, ___ U.S.

___, ___, 114 S. Ct. 1526, 1529 (1994).   The officer testified

that when Bolin had arrived on the scene, she had not focused her

investigation on him.   She believed that he was free to leave up

until the time she arrested him at 11:55 p.m.    However, the

officer testified that she did not communicate this belief to

Bolin.   The objective facts in this record that the trial judge

believed support a finding that Bolin was not in custody until

his arrest.   Thus, we hold that the trial judge did not err in

refusing to suppress as evidence Bolin's statements and the

certificate of analysis.


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     Because Bolin's statements were properly admitted, we need

not address his argument that the Commonwealth could not prove




                              - 5 -
that Bolin was arrested within two hours of his offense pursuant

to Code § 18.2-268.2(A).   Thus, we affirm his conviction.

                                              Affirmed.




                               - 6 -
BENTON, J., dissenting.



     The objective facts prove that two uniformed deputies

employed by the sheriff's department who were at the scene of the

automobile accident arrived at Jesse Lee Bolin's residence with

Bolin's father.    The statement of facts recites that Bolin

testified "[h]e was told by the deputies to accompany them to the

accident scene."   The statement of facts also recites that

Bolin's mother testified that "[t]he deputies asked [Bolin] to

accompany them to the accident scene . . . [and Bolin] complied."
     In ruling that Jesse Lee Bolin was not subjected to

custodial interrogation after he arrived at the accident site,

the trial judge relied, in part, upon "the testimony that Trooper

Olinger had not 'focussed' her investigation upon . . . [Bolin]

when he arrived at the accident scene and the testimony that

Trooper Olinger believed that . . . [Bolin] was free to leave the

scene at any time . . . [until] she placed . . . [Bolin] under

arrest."   However, in Stansbury v. California, ___ U.S. ___, ___,

114 S. Ct. 1526, 1529 (1994), the United States Supreme Court

reaffirmed its previous holdings and ruled that "the initial

determination of custody depends on the objective circumstances

of the interrogation, not on the subjective views harbored by

either the interrogating officers or the person being

questioned."   As particularly pertinent to this case, the Court

noted "that any inquiry into whether the interrogating officers

have focused their suspicions upon the individual being


                                - 7 -
questioned . . . is not relevant for purposes of Miranda."   Id.

at ___, 114 S. Ct. at 1530.

     Because the record contains objective facts that tend to

prove Bolin was in custody and because the trial judge erred in

considering subjective factors in deciding that Bolin was not

subjected to custodial interrogation, I would reverse the

conviction and remand the suppression motion to the trial judge

for reconsideration.




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