*1 shipment for in- ready loaded were compensa- CITY, to remit the contract
duced Cook LAKE Plaintiff SALT damages required. The tion sooner than Respondent, $33,660, which were sought under this count This was the amount remitted. GARNER, R. Steven consideration would return of the contract Appellant. requested recovery be at odds with Cook’s damages for consequential of incidental аnd No. 18587. Consequently, of contract. breach present- seems to be cause action tort Supreme Court Utah. an addition ed as an alternate rather than April for breach con- to the cause action permissible Though pleading tract. authorities, Dairyland Insurance
under our Smith, Utah,
Corp. P.2d Lund, 2d Smoot 934-35 judgment could enter on properly theories, represent a
both since that would City Sand & recovery. Brigham
double Center, Inc., Utah, Machinery
Gravel 511-12 punitive damages cannot
The verdict does not sustained because the record damages in compensatory
show an award of punitive damages could
tort to which such above, Moreover, ascribed. noted damages had compensatory
even if tort awarded, judgment it is doubtful that theory
could be in addition entered judgment con- entered breach
tract. judgment striking modified
$5,000 punitive as so modi- damages, and
fied is affirmed. No costs awarded.
HALL, C.J., STEWART, HOWE and
DURHAM, JJ., concur.
H69 coming from the car’s interior. In talking defendant, to the the officer noticed that his speech was slurred. The officer asked get defendant to out of the car and some field sobri- ety verbally agreed tests. He to the tests. Also, when instructed on how to test, finger heel-to-toe count slap hand and the balance test he attempted to comply separate with each request. he was unable to effec- tively perform any of those tests. Based upon his observations driving pat- tern, odor, sobriety tests, and de- speech, fendant’s the officer formed the Xaiz, Yengich, Ronald J. Earl G. Salt opinion that the defendant was intoxicated City, Lake for defendant appellant. it impaired his driving. Roger Cutler, City Atty., F. Salt Lake defendant, He arrested advised him of the City, plaintiff and respondent. law, implied consent and аsked him if he would take a breathalyzer test. The de- HOWE, Justice: agreed and fendant the test was adminis- charged Defendant was un- by tered another officer who observed the der the influence of alcohol and improper opinion defendant and who also formed the change, lane both in violation of the Re- that he was under the influence of alcohol. visеd Ordinances A City. Lake cir- Salt trial, At the breathalyzer test result of judge cuit court charges dismissed the 0.14% blood alcohol was admitted into evi- ground that the defendant had taken objection. (This dence without result certain field tests in violation of his was .06%above the .08%which is the statu- right against self-incrimination afforded tory presumptive threshold for un- I, Article of12 Constitu- Section influence). However, der the defense coun- appeal court, tion. On to the district sel moved that the results of defendant’s judge district court in a memorandum deci- performance of the field sion, the ruling reversed of the circuit court suppressed since was not Miran- and remanded the ease for proceed- further da in violation of this state’s con- ings. appeals tо this court seek- guarantee against stitutional ing reversal of the district court’s deci- Apparently tion. fruit of the sion and a reinstatement of the circuit poisonous doctrine, but tree without com- ruling. court’s ment, the circuit court granted motion undisputed. The facts are In the early charges against and dismissed all morning July hours of 1980 Salt Lake ant. City police officer driv- saw Article Section 12 of the Utah Consti- a red Datsun in the area of Tenth West tution states: Temple. and North He observed defend- accused shall not ant’s car cross the center line of the street give evidence himself ... separate travelling ap- three times while proximately one block. After performing defendant’s Defendant contends turn, car made a left sweeping the officer tests constituted pulled Upon him over. approaching against himself, as defined in Hansen v. car, the officer Owens, Utah, smelled an odor of alcohol He (1980).1 also Although stating that the case limited to of our constitution is broader than facts, wording its this Court there held that the federal constitution which uses the packing compa- meat taken from а posal the time he was asked to that at
contends
ny.
We stated:
the tests
of his free-
significantly deprived
and the
wholly impractical
It would be
evi-
dom,
thereby
require
law
an officer who
does
The first contention
dence
himself.
suspicious
investigating
*3
second since
is
premised upon
is
warning
everyone
“Miranda”
to
give the
rights if one
no
of constitutional
violation
questiоn.
he
a
of whom asks
against
gives evidence
oneself.
voluntarily
308,
25
2d
P.2d
Id. Utah
at
480
737. Simi-
turn to a consideration
We shall therefore
307,
Abbott,
v.
21 Utah 2d
larly, in State
contention.
of defendant’s second
(1968),
prisoner
445
142
we held that a
P.2d
contention that
basis for defendant’s
The
warning prior
was not entitled to a Miranda
to
he was
very
dialogue
his
in a
short
engaging
to
agreed
to
against himself is
guards in which the
captain
with the
did
knife,
was
whether a
which
prisoner
asked
psycho-
physical
“some substantial
shortly
after another
captain
he handed
logical control or restraint.”
In State v.
stabbed,
to
belonged
pris-
prisoner was
897,
Martinez, Utah,
(1979),
P.2d
899
we
595
oner.
that a
requires
person
held
restraint
be
tempo
widely
It has been
held that
rights.2
of his Miranda
Since he
advised
investi
rary
purрose
detention for
advised,
argues
was
that
not so
syn
is not
gating alleged traffic violations
knowingly
voluntarily
he
waive
did
onymous
in-custody interrogation
is
he
rights.
implication
those
requires
warning.
which
a Miranda
State
voluntarily
189
Gray, Wash.App.
v.
3
so.
was
to do
Tellez,
251,
(1970);
v.
431
State
which defendant relies
upon
The dictum
691,
gen
A.L.R.3d 1063
Martinez,
v.
was written in
supra,
State
Annot.,
erally
An
a
affirmance of
conviction
the context
an
must
of his Miranda
apprised
accused
be
a
controlled substance
possession
setting
is
or accusato
rights if
custodial
unsuccessfully
where the accused
contended
ry
investigatory.
rather
than
In other
rights
have been
that his Miranda
should
words,
the environment be
at
repeated
hour of their first
within one-half
accusatory,
police
a
оffi
comes custodial or
though the
explication
sequence
even
with a
questions
prefaced
cer’s
must
was continuous. The facts of that
events
However, for
pur
warning.
is “sub
guide
case do not offer a
for what
has
determining pose physical
psychological
stantial
control.”
committed,
and inter
been
from the case be
Similarly distinguishable
circumstancеs,
critical;
view are
under such
fore us is the
“detained
Annot., 25
warning
required.
is not
significant way”
Ruggeri,
found in
v.
State
A.L.R,3d
Illinois,
v.
(1969); Escobedo
216,
(1967),
19 Utah 2d
H71 get his ear warning out of which held that a Miranda was not proceeded question him. The defendant necessary when were investigating was admitted car he whether a crime been committed at all. his taking drugs. and that had been State, Okl.Cr., In Riddle v. officers his told remove coat and (1973), a held not to be enti- sleeves, roll up whereupon they observed tled his constitutional puncture fresh mark in the each bend of rights prior performing the coordination arm. observed that the formal tests which led to his arrest for the offense not an adequate dividing arrest line to public drunk. The court determined that use as a rule to when warn- dеtermine requests made the police officer ings rights of constitutional must be were non-custodial in nature. find the suspect stopped, after a has since comparable instant case to be case. temptation great would be too for officers *4 here, sobriety The field tests like the coordi- ques- to postpone formal arrest until a full there, nation tests were not requested in a Instead, tioning completed. was court the setting. custodial opted the the for rule that Miranda warn- ing given police need not be until have both Riffle, in State v. grounds reasonable to believe that a crime (1981), Ariz. P.2d 732 restated four has been committed and also reasonable important of the most factors in determin grounds to believe that the com- ing whether an accused who has not been mitted the it. Said court: formally arrested in custody. They is are: point believe that the where the (1) interrogation; the site of (2) whether must be is when two the accused; investigation the on focused the generally coincide, point that (3) objective whether the of indicia arrest police forward the be expеcted can present; (4) were the length form pursue the case against the defendant interrogation. of Applying that test to the with vigor. police must have focused case, sobriety instant tests were generally upon so the crime requested and on a public taken street. would have cause for arrest a without Moreover, no of indicia arrest such as rеad warrant. When the offense is a misde- handcuffs, ied guns locked doors or drawn meanor the crime be must committed present were when the officer the asked A.R.S., the presence of officer. the 1. The subsection time § Also, length performance tests. is caution when the arrest could be made. minutes, only relatively of the tests was Everything prior may time be short of time. These do period factors general considered “the on scene suggest setting. custodial The environ questioning” permissible which is may ment have been authoritative but it Miranda. The officers smelled defend- certainly compelling. was not coercive or ant’s breath and at his This looked arms. of part investigation was for deter- It true had investigation is fo- if a mining crime had bеen committed. However, on the that was cused accused. Questions asked at this time also would observation; and, point true at the of initial investigative. Without such questions argue no one would that a Miranda warn- answers, limited at that obligatory point. was Unlike drunk, in knowing person whether a was identity crimes where the of the crim- many addict, diabetic, a narcotics victim of an crime question, usually inal in the is
illness, or under the influence of medi-
influence,
identity
under the
not the
drugs.
cation or non-narcotic
fact of
is questioned.
commission
case,
6 Ariz.App.
investigation
In such a
cannot be-
there is
suggested by
accusatory
The test
the court in
come
until
qjjkqlihood
comports
Perhaps
our
case
decision
that a crime has been committed.
Shuman, Utah,
(1981)
heavy
State v.
whether
emphasis
P.2d 155
on
factor of
subject
priv
ty
on
accused
constitutional
investigation is focused
agree
majority
with the
ilege.
do
identity
question.
is the
justified
where
“the
conclusion that
opinion’s
nature
the crime
in view of the
significant
or
not in
otherwise
lack was
influence and the
under the
here,
re-
To the con
heavy
ly deprived of
freеdom.”
custodial factors
other
case,
circumstances of this
upon
trary,
whom
under the
liance
the sole factor
was “taken into
the defendant
was focused is not warranted.
deprived
his freedom of action
investigatory
was
in the
still
officer
way.” Miranda v. Arizo
significant
in [a]
per-
stage
he asked the defendant
when
436, 444,
na,
86 S.Ct.
U.S.
If the defend-
form field
L.Ed.2d 694
not been
ability
ant’s
to drivе a
two
developed
for a reason other
have
impaired
impaired
The courts
influence,
may
applies:
at what
being
determining
than
under the
Therefore,
Illinois,
test of Escobedo v.
(1)
have been no crime committed.
the “focus”
L.Ed.2d 977
requesting
the officer in
378 U.S.
test.
(2)
continuing
to ascertain
Smith,
Question Ap-
soon
committed at all. As
The Threshold
had been
See
What
Custоdi-
plying
officer determined
Miranda:
Constitutes
due
driving appeared
impaired
Interrogation?,
ant’s
to be
al
S.C.L.Rev.
Paz, Or.App. 851,
alcohol,
him.
arrest
Until
also
*5
test,
investigate
(1977).
the
time the officer was entitled to
P.2d 1036
Under
“focus”
investigation fo-
giving
at the scene without
when the
applies
circumstances
the
and the officer
warning.
particular suspect
defendant Miranda
сuses on
to
probable
particu-
has
cause
believe
the defendant was not in
Since
See, e.g.,
crime
lar
has
committed.
significantly deprived
of his
Utah,
Simpson,
State
freedom,
not
custody
compel
Annot.,
is irrelevant
evidence. C.J.,
HALL, dissents. COX, Appellant, J. Plaintiff
Paul CORPORATION, body
CEDAR CITY
corporate politic State of Respondent.
Utah,
No. of Utah.
Supreme Court 29, 1983.
April Cox, pro
Paul J. se. Braithwaite, City, Robert T. Cedar respondent. defendant and HOWE, Justice: building, City destroyed improve- Cedar pursuant to a personal property ments and declaring it a nuisance. There- court order after, plaintiff J. this brought Paul Cox City damages action Cedar *7 personal the removal and conversion building. appeals He property in the now trial of his case. court’s dismissal which had last building A wood frame been used in thе late 1960s as auto sales repair became vacant and fell business City Cedar disrepair. attempted into co-owners, failed convince Cox McArthur, the necessary Andrew make City repairs. In 1972 the sued abate nuisance. McArthur did not answer but sent letter of the court Cox clerk City’s denying alleged the matters January of the court complaint. authorizing judgment entered default holding to abate the nuisance City