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a motorist is not subject to custodial interrogation prior to an arrest


In 2002, Kenneth Keys was driving a vehicle and passed Perry County Deputy Sheriff Danny Merritt, who was driving in the opposite direction. The road on which the two men were traveling is narrow. Keys testified that the deputy had his high beams on and was pulled to the side of the road as Keys passed by.

Merritt testified that he noticed a vehicle traveling in the middle of the road with the bright lights activated. The deputy pulled to the side of the road and flashed his bright lights at the oncoming vehicle, then activated his blue lights when the oncoming vehicle did not respond. The oncoming vehicle seemed to get faster, and just kept going. At this point the deputy turned his vehicle around and began to pursue the vehicle that had just passed by.

After pulling in to a driveway behind Keys and approaching the stopped vehicle, the deputy noticed the smell of alcohol and asked if Keys had been drinking. Keys responded that he had not been drinking. Merritt asked Keys what he thought he might register on a breathalyzer. Keys responded that he would probably register a two. Merritt understood that to mean a .2 on the breathalyzer.

The breathalyzer reflected that Keys had a blood alcohol content of .2, well above the legal limit. After Keys failed the breathalyzer, Keys fled. Merritt pursued Keys and fell on top of Keys. The two men struggled but Keys managing to break free twice.

During the struggle, Merritt testified that Keys struck him twice, once in the temple area of the head and a second time in the mouth. Merritt decided not to pursue Keys into the woods alone because he had dropped his portable radio and flashlight during the struggle. Keys turned himself in to law enforcement two days after the incident.

Keys was convicted of simple assault on on a police officer and sentenced to five years. On appeal, he argued the officer improperly questioned him without Miranda warnings. MCOA affirmed.


Keys argues that his answer to Merritt’s question, concerning what Keys thought he would register on the breathalyzer, was inadmissible.

To resolve the issue of whether the statement Keys made was made during a custodial interrogation, and therefore inadmissible absent a waiver of Miranda rights, we must first determine whether Keys was in custody and being interrogated when the statement was made.

The status of whether a person is in custody depends on if a reasonable person would feel that they were going to jail and not just being temporarily detained. Due to the routine nature of the precise issue before us, we do not engage in a detailed analysis of whether Keys was in custody. This court has previously said in Levine that a motorist is not subject to custodial interrogation prior to an arrest.

Keys was being questioned about whether he had been drinking due to the smell of alcohol on him or emanating from within his vehicle. Merritt testified that Keys twice prevented the portable breathalyzer device from properly producing a reading due to biting down on the mouthpiece. The question to Keys was asked prior to the deputy obtaining an incriminating reading from the breathalyzer device. No arrest had yet been made.

Keys was not subject to a custodial interrogation and did not need to receive Miranda warnings at the moment he was asked what he would register on a breathalyzer. The issue is without merit.