The appellant in this criminal case was convicted of DWI in El Dorado Municipal Court. He appealed to circuit court and, after a de novo bench trial, was found guilty of DWI, first offense; sentenced to 120 days in jail with 119 suspended; fined $300 plus costs; ordered to attend a DWI program; and had his driver’s license suspended for ninety days. From the decision, comes this appeal.
For reversal, the appellant asserts that there was insufficient evidence to support a finding that he was in control of the vehicle, and that the trial court erred in denying his motion to suppress the results of a breathalyzer test. We agree with the appellant’s first contention, and we reverse and remand.
As required by the Arkansas Supreme Court’s decision in Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), when there is a challenge to the sufficiency of the evidence, the appellate court is required to review that point prior to considering any alleged trial error. See Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). On appeal in criminal cases, whether tried by a judge or jury, we review the evidence in the light most favorable to the State and affirm if there is any substantial evidence to support the trial court’s judgment. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). To be substantial, the evidence must be of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must induce the mind to go beyond mere suspicion or conjecture. Lair v. State, 19 Ark. App. 172, 718 S.W.2d 467 (1986).
Viewed in the light most favorable to the appellee, the evidence shows that Officer Terry Canterbury of the El Dorado Police Department was dispatched to investigate a one-vehicle accident on July 15, 1989. When he arrived at the scene, Officer Canterbury observed that an automobile had struck a tree after crossing a set of railroad tracks. He first assessed the damage to the automobile and, while doing so, noticed an odor of alcohol in the vehicle. Officer Canterbury then walked over to a group of people which included the appellant, the appellant’s girlfriend, and two other people who were helping them. Suspecting that alcohol might be involved in the accident, Officer Canterbury noticed that the appellant had an odor of alcohol on his breath, had a flushed appearance, and spoke rapidly in response to the officer’s questions. Officer Canterbury stated that, once he detected the odor of alcohol on the appellant’s breath, the appellant was not free to leave although he had not yet been formally arrested. Officer Canterbury also stated that he asked the appellant if he had been driving the car, and that the appellant admitted that he had been driving when the accident occurred. However, at trial the appellant moved in limine to suppress the statements given to Officer Canterbury on the grounds that he had not been given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966) and the trial court granted the motion. On cross-examination, Officer Canterbury stated that he never saw the appellant drive the automobile.
Under Ark. Code Ann. § 5-65-103(a) (1987), it is unlawful for any person who is intoxicated to operate or be in actual physical control of a motor vehicle. Operation of a motor vehicle may be proven by (1) observation of the officer; (2) evidence of intent to drive after the moment of arrest; or (3) a confession by the defendant that he was driving. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). In the case at bar, Officer Canterbury testified that he never observed the appellant operating the vehicle; moreover, there was no evidence to show that the appellant intended to drive after the moment of arrest. Finally, the appellant’s admission that he had been driving was suppressed by the trial court and, therefore, was not in evidence. Under these circumstances, we hold that the evidence admitted at trial was insufficient to support a conviction for DWI because there was no evidence showing that the appellant operated or was in actual physical control of the vehicle.
In Burks v. United States, 437 U.S. 1 (1978), the United States Supreme Court held that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient to sustain a conviction, as distinguished from trial error. The state, however, argues that the trial court committed error in granting the appellant’s motion to suppress the appellant’s statement in which he told Officer Canterbury that he was the driver of the vehicle, and thus contends that the case should be remanded for retrial under our supreme court’s decision in Crutchfield v. State, 306 Ark. 97, 104, 816 S.W.2d 884 (1991) (supplemental opinion granting rehearing).
In Crutchfield, supra, the supreme court had determined that the evidence presented at trial was insufficient to support the appellant’s conviction, but the court also concluded that the trial court had erred in excluding expert testimony offered by the state. In its opinion on rehearing, although recognizing that retrial is prohibited on grounds of double jeopardy when a conviction is reversed for evidentiary insufficiency, the court ruled that when the state offers sufficient evidence and a portion of it is erroneously excluded the defendant may be retried without offending the right against being placed twice in jeopardy. Consequently, the case was remanded for a new trial on a holding that the evidence would have been sufficient had the state’s expert testimony been properly admitted at trial.
In order to determine whether the decision in Crutchfield, supra, is applicable to this case, we must first decide whether the trial court erred in excluding appellant’s statement. In his argument for suppression before the trial court, appellant contended that he was “in custody” at the time he made the incriminating statement, but had not been advised of his Miranda rights. We do not agree that the statement was a product of custodial interrogation so as to warrant its exclusion at trial.
The warnings required by Miranda v. Arizona, supra, come into play only when the defendant is subjected to custodial interrogation or its functional equivalent. Bennett v. State, 302 Ark. 179, 789 S.W.2d 436 (1990). Miranda warnings are not required if the questioning by police is simply investigatory. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). To determine whether or not one has been subjected to custodial interrogation so as to require the giving of Miranda warnings, in Shelton v. State, supra, the supreme court set forth the following test:
It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a degree associated with formal arrest. A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.
Shelton, 297 Ark. at 328-29, 699 S.W.2d at 731 (quoting Berkemer v. McCarty, 468 U.S. 420 (1984)).
The circumstances in the present case are not unlike those found in Snyder v. City of Dewitt, 15 Ark. App. 277, 692 S.W.2d 273 (1985). In Snyder, a police officer investigating the scene of an accident was told by the appellant that he had driven the vehicle into the ditch, and we found no error in the trial court’s denial of the motion to suppress. Here, although officer Canterbury testified that appellant was not free to leave once he detected the odor of alcohol on appellant’s person, there is no indication in the record that the officer communicated this restriction to appellant prior to his arrest. The record reveals that Officer Canterbury was the only policeman in attendance, and there were several spectators present during the investigation which took place on a public highway. As in Snyder, supra, we do not think the circumstances here were such that appellant would have been justified in the belief that he was in custody when he told Officer Canterbury that he had been driving the vehicle. Therefore, we hold that the trial court erred in suppressing appellant’s inculpatory statement. We also hold that the inclusion of this evidence would render the evidence sufficient to support a conviction.
In Crutchfield, supra, the court said that the state is entitled to prove its case. Accordingly, we reverse and remand this case for retrial. Therefore, it becomes necessary to address the second issue raised by appellant on appeal.
Appellant contends that the results of the breathalyzer test, which showed he had .12% blood alcohol level, should have been suppressed because Officer Canterbury had no reasonable cause to require him to submit to the test. We do not agree. Arkansas Code Annotated § 6-65-203(a) (Supp. 1991) provides that the test “shall be administered at the direction of a law enforcement officer having reasonable cause to believe the person to have been operating or in actual physical control of a motor vehicle while intoxicated or while there was one-tenth of one percent (.10%) or more of alcohol in the person’s blood.” We believe that appellant’s flushed appearance, slurred speech, and uneasiness on his feet, along with Officer Canterbury’s detection of the odor of alcohol supplied ample cause for requiring the breath test. See Elam v. State, 286, Ark. 174, 690 S.W.2d 352 (1985). Therefore, we hold that the trial court did not err in allowing the introduction of the test results.
Reversed and Remanded.
Cooper and Danielson, JJ., dissent.