
204 S.E.2d 843 (1974)
285 N.C. 320
STATE of North Carolina
v.
Donald Samuel LAWSON.
No. 58.
Supreme Court of North Carolina.
May 15, 1974.
*845 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.
Wheatly & Mason by L. Patten Mason, Beaufort, for defendant appellant.
MOORE, Justice.
Defendant first asserts that the trial court erred in admitting into evidence incriminating statements made by defendant to the investigating officer at the scene of the accident.
Defendant was arrested for public drunkenness by Patrolman Askew and placed in the patrol car. He was then advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and questioned by the patrolman. Among his other rights, defendant was advised that he had the right to an attorney and that he could call an attorney when he arrived at the Newport Police Department. The patrolman asked defendant if he understood his rights. Defendant made no response. The patrolman then questioned defendant as to what had happened and defendant told him that he was driving the car and was attempting to turn around in the road when the car ran into the ditch. This statement was admitted into evidence over the objection of defendant. Without this statement the State had no direct proof that defendant was driving.
Defendant contends this statement was elicited by custodial interrogation before he had knowingly and intelligently waived his rights guaranteed by Miranda, and that the statement should have been excluded. Miranda warnings and waiver of counsel are required when and only when a person is being subjected to "custodial interrogation"; that 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." Miranda v. Arizona, supra; State v. Blackmon, 284 N.C. 1, 199 S.E.2d 431 (1973).
In State v. Sykes, N.C., 203 S.E.2d 849 (1974), Justice Huskins, for the Court, stated:
". . . `The brief detention of a citizen based upon an officer's reasonable suspicion that criminal activity may be afoot is permissible for the purpose of limited inquiry in the course of a routine investigation, and any incriminating evidence which comes to the officer's attention during this period of detention may become a reasonable basis for effecting a valid arrest.' United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970).
"Furthermore, the decision in Miranda was not intended to hamper the traditional function of police officers in investigating crime. `Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning *846 as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. . . . In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present. * * * In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence.' Miranda v. Arizona, supra."
In the present case Patrolman Askew testified that he arrested defendant for public drunkenness and placed him in the patrol car. Clearly, the subsequent interrogation was "custodial interrogation," and the trial court erred in the conclusion of law that it made following the voir dire:
"1. That no Miranda warning was required, that the questions asked were part of the officer's investigation of a routine accident and was not an in-custody interrogation and under the circumstances here the Miranda warning was not required."
Defendant was highly intoxicated or drunk at the time of his arrest, and even assuming he was in condition to intelligently and understandingly waive his rights, the record discloses and the trial court found that he made no response when asked if he understood those rights. He was further advised by the patrolman that he could call an attorney when he reached Newport, but without waiting until they reached Newport the patrolman immediately started questioning him about what had happened. As a result of this questioning, the statement allegedly made by defendant was secured. See State v. Edwards, 282 N.C. 201, 192 S.E.2d 304 (1972).
The trial court next concluded:
"2. That the Miranda warning was in all respects given and the defendant by his silence and continued answering of questions waived any right to counsel,
"(After the State had rested its case, the court on its own motion amended the above conclusions of law and provided `and any statements were voluntarily and understandingly made.')"
Prior to amending his conclusions of law to the effect that defendant's statements were "voluntarily and understandingly made," the trial judge had heard the testimony of the arresting officer that defendant "was the drunkest man he had seen in a right good while." In further describing defendant's condition after he arrived at the police station, the patrolman stated:
"After I got him to the police station, I gave him some tests which I have described to the solicitor. In my opinion, he failed these tests. All of them. I asked him questions at the police station. I asked him a question as to whether or not he had been driving an automobile and his answer at the police station was `no.' He said `no' to that question. On the form that I put down he had a hard time understanding the performance tests that I was trying to give him for what to do. I had to tell him a couple of times each or what I wanted him to do two or three times each. After I told him two or three times he tried to do them, but he still couldn't do them."
The trial judge also had heard the following testimony from Officer Tomlinson who administered the breathalyzer test almost an hour after defendant had been arrested:
"I have been a breathalyzer operator approximately ten months. I have run approximately 70 or 80 tests during this ten months' period. I believe Mr. Lawson's test had the highest results I have ever obtained in giving any of these tests. On the scale of Exhibit No. 1, it runs from .0 to .40. The highest reading that the machine will give on this scale is .40. Mr. Lawson's test was within 5 points of being the highest reading that you could give. I observed Mr. Lawson *847 and, in my opinion, he was drunk, very drunk."
Assuming that defendant understood his rights, we hold that the court erred in concluding as a matter of law that by defendant's silence and continued answering of questions he waived any right to counsel. These facts are not sufficient to constitute a waiver of counsel. This is stated in State v. Blackmon, 284 N.C. 1, 10, 199 S. E.2d 431, 437 (1973):
"There is neither evidence nor findings of fact to show that defendant expressly waived his right to counsel, either in writing or orally, within the meaning of Miranda on which our decision in State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971), is based. `An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.' Miranda v. Arizona, supra. Silence and waiver are not synonymous. `Presiding waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962)."
However, the State contends that under State v. Beasley, 10 N.C.App. 663, 179 S. E.2d 820 (1971), a case factually similar to this case, no Miranda warnings were necessary. In Beasley, however, defendant was not in custody at the time of the questioning and his incriminating statement was made as a result of an on-the-scene investigation, an exception specifically recognized in Miranda. Hence, Beasley is distinguishable from the present case, for as stated in Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969):
"The questioning of a driver of a stopped car on an open highway by one policeman, without more, cannot be characterized as a `police dominated' situation or as `incommunicado' in nature.. . .
* * * * * *
". . . This general on the scene questioning is a well accepted police practice; it is difficult to imagine the police warning every person they encounter of his Miranda rights. This is why the opinion in Miranda expressly excluded `on-the-scene questioning' from the warning requirements. . . ."
See State v. Sykes, supra.
The Court of Appeals in Beasley quoted with approval from State v. Macuk, 57 N. J. 1, 15-16, 268 A.2d 1, 9 (1970), as follows:
"Now, with the problem squarely before us, we are of the opinion that, in view of the absence of any indication to the contrary by the United States Supreme Court, the rules of Miranda should be held inapplicable to all motor vehicle violations."
We do not approve this language. This Court in State v. Hill, 277 N.C. 547, 553, 178 S.E.2d 462, 466 (1971), stated: "One who is detained by police officers under a charge of driving while under the influence of an intoxicant has the same constitutional and statutory rights as any other accused," citing State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969). In State v. Strickland, 276 N.C. 253, 261, 173 S.E.2d 129, 134 (1970), a case in which defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor, Justice Branch, speaking for the Court, stated:
"It is the law in this state `that in-custody statements attributed to a defendant, *848 when offered by the State and objected to by the defendant, "are inadmissible for any purpose unless, after a voir dire hearing in the absence of the jury, the court, based upon sufficient evidence" makes factual findings that such statements were voluntarily and understandingly made by the defendant after he had been fully advised as to his constitutional rights.' State v. Catrett, 276 N.C. 86, 171 S.E.2d 398 [Citations omitted.]"
See State v. Sykes, supra; Annot., 25 A. L.R.3d 1076 (1969).
In Miranda the Supreme Court adopted the following rule:
"At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. . . . The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. . . . [T]he right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. . . . [T]he need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires. . . . Accordingly, we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. . . . As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation.. . ." 384 U.S. at 467-471, 86 S.Ct. at 1624.
The Supreme Court of the United States in Miranda does not limit the rights it sets forth to persons charged with felonies or misdemeanors, and neither does this Court in State v. Strickland, supra; rather both Courts relate those rights to any individual being subjected to custodial interrogation concerning a criminal charge. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). We hold, therefore, that after the defendant in this case was arrested and placed in the patrol car, the rules of Miranda were applicable to him just as any other person in custody on a criminal charge.
For the reasons stated, the decision of the Court of Appeals is reversed, and the cause is remanded to that court with direction to award a new trial to be conducted in accordance with the principles herein set forth.
Reversed and Remanded.
