20 NICS App. 23
 
IN THE SOUTHERN UTE COURT OF APPEALS
SOUTHERN UTE INDIAN RESERVATION
IGNACIO, COLORADO
 
Southern Ute Indian Tribe, Plaintiff/Appellee,
v.
Darren Joseph, Defendant/Appellant.
 
NO. 2022-0098-CV-AP (October 13, 2022)

OPINION

Weathers, J:

Defendant Darren Joseph, an enrolled member of the Southern Ute Indian Tribe, appeals his convictions for driving under the influence of alcohol, reckless driving, and speeding. He seeks dismissal of his convictions based on the failure of law enforcement to give him the well-known Miranda warnings at his traffic stop. For the reasons discussed below, we AFFIRM the decision of the trial court.

I. BACKGROUND

On January 27, 2022, just before midnight, Colorado State Trooper Sierra Ziegler saw Joseph driving at a high rate of speed in the opposite direction on State Highway 172 within the Southern Ute Indian Reservation. She turned her patrol car around, caught up with Joseph, and pulled him over for speeding at 100 mph in a 65-mph zone. While pursuing Joseph, Trooper Ziegler noticed Joseph was excessively braking and weaving within his lane of travel. Trooper Ziegler called for backup help from the Southern Ute Police Department.

After the stop, Trooper Ziegler commanded Joseph to put his hands outside the driver’s side window. He failed to comply. Upon approaching Joseph, Trooper Ziegler noticed Joseph was slumped in his seat, had a strong odor of alcohol, and when Joseph spoke, he slurred his speech and did not (or could not) follow simple requests. For example, when Trooper Ziegler asked Joseph for his registration and insurance, Joseph handed her a handicap placard.

When Joseph spoke, his speech was so slurred Trooper Ziegler had a difficult time understanding Joseph. Trooper Ziegler noticed that Joseph was sweating even though it was only 15 degrees Fahrenheit outside. When backup arrived, Sgt. Dale Gurule of the Southern Ute Police Department also observed that Joseph had a strong odor of alcohol, slurred speech, and bloodshot, watery eyes. Joseph refused to perform any roadside maneuvers.

Law enforcement offered Joseph a choice between an implied consent breath test or blood test to determine his level of intoxication. Joseph chose the blood test. However, when they arrived at the hospital, Joseph refused to allow his blood to be drawn. Joseph was observed at the hospital as unsteady on his feet and he had to be assisted.

The Southern Ute Tribe filed a criminal complaint against Joseph. He moved to dismiss the complaint based on the alleged failure of law enforcement to read Joseph his Miranda rights at the time of the traffic stop. He argued that any statements he made thereafter could not be used against him. The prosecutor did not respond to the motion, and the trial court never ruled on the motion. The case proceeded to a bench trial.

At the bench trial on July 18, 2022, the tribal court heard and admitted evidence regarding the traffic stop. The tribal court found Joseph guilty of speeding. Radar had clocked him doing 100 mph in a posted 65 mph zone. The tribal court also found Joseph guilty of reckless driving and driving under the influence of alcohol. Joseph was observed driving erratically, excessively braking, smelled of alcohol, had very slurred speech, was slumped in a sitting position when pulled over, had bloodshot, watery eyes, had an unbalanced walk, had difficulty following directions, and refused to take a blood or breath test after being told such a refusal would result in loss of driving privileges.

On August 3, 2022, the tribal court sentenced Joseph to 365 days in jail on the DUI conviction and an additional 180 days in jail for the other two convictions. Joseph timely filed this appeal the next day and seeks reversal and dismissal of his convictions.

II.    LEGAL DISCUSSION

Joseph argues in his Notice of Appeal (he did not submit a brief) that all evidence against him was illegally obtained because law enforcement did not read him his Miranda rights before asking him to exit his vehicle after the traffic stop. He essentially repeats the arguments he made in his motion to dismiss. He wants the convictions and sentences in this case overturned.

We will deem the trial court’s failure to rule on the motion to dismiss/suppress as a denial.1 See Day v. Fort Peck Tribes, 2022 WL 614729 (Fort Peck C.A. Mar. 2, 2022) (failure to rule on motion to suppress suggests implicit denial); Fort Peck Tribes v. Hair, 2021 WL 4948005 (Fort Peck C.A. Oct. 22, 2021) (motion to suppress deemed denied when trial court fails to rule); Hughley v. Alabama, 2021 WL 1554910, at *3 (N.D. Ala. Mar. 18, 2021) (failure to timely rule on motion to withdraw guilty plea deemed denied); Garner v. Dist. Att'y of Allegheny Cnty., 2020 WL 3578547, at *2 (W.D. Pa. June 3, 2020) (post-trial criminal motion deemed denied if judge fails to timely rule); Mincey v. Att'y Gen. Fla., 2017 WL 11461805, at *3 (M.D. Fla. Dec. 14, 2017) (criminal motion deemed denied if not timely granted); Stephens v. Kelley, 2016 WL 5868092, at *1 (E.D. Ark. Sept. 28, 2016) (post-trial criminal motion deemed denied if not timely resolved); United States v. Washington, 602 F. App'x 688, 691 (10th Cir. 2015) (matter deemed denied if trial court fails to grant or deny); Navajo Nation v. John, 2009 WL 3614308 (Navajo Oct. 30, 2009) (motion for reconsideration deemed automatically denied if trial court fails to timely rule on motion); Hoffman v. Cheyenne & Arapaho Election Comm'n, 2009 WL 10269897, at *8 (Cheyenne-Arapaho Oct. 30, 2009) (motion for clarification, revised judgment, or rehearing deemed denied if not timely ruled on).

“When reviewing the denial of a suppression motion, we view the evidence in the light most favorable to the government, accept the district court's factual findings unless they are clearly erroneous, and review legal conclusions de novo.” United States v. Guillen, 995 F.3d 1095, 1103 (10th Cir. 2021); see also Southern Ute Indian Tribal Code § 3-1-112 (adopting same standards of review that findings of fact will be sustained unless clearly erroneous and conclusions of law will be reviewed without deference to lower court’s determination). “When a party challenges a district court's ruling on a motion to suppress a confession, we review its conclusions of law de novo and its factual findings for clear error.” United States v. Pettigrew, 468 F.3d 626, 633 (10th Cir. 2006). “A district court's factual finding is clearly erroneous when it is without factual support in the record or if, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made.” United States v. Tafoya, 557 F.3d 1121, 1126 (10th Cir.2009).

Under the Indian Civil Rights Act, no Indian tribe in exercising powers of self-government shall “compel any person in any criminal case to be a witness against himself.” 25 U.S.C. § 1302(a)(4). In Miranda v. Arizona, the U.S. Supreme Court in applying identical language under the U.S. Constitution concluded that “the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work . . . to compel him to speak where he would not otherwise do so freely.” 384 U.S. 436, 467 (1966). To guard against these pressures, the U.S. Supreme Court ruled that “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. at 444.

Without these warnings, custodial confessions are presumed to be the product of coercion and are generally inadmissible for purposes of the prosecution's case in chief. United States v. Patane, 542 U.S. 630, 639 (2004) (plurality opinion). “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, 384 U.S. at 444.

Miranda is inapplicable to this case. Joseph was not convicted based on inculpatory statements stemming from a custodial interrogation. He made no custodial confession on which the prosecution relied to convict. Joseph was convicted based on the observations of law enforcement during and after a legitimate traffic stop for speeding. It was undisputed at trial that Joseph was the only occupant of his vehicle; radar confirmed he was speeding at 100 mph in a 65-mph zone; Trooper Ziegler noticed erratic driving when Joseph excessively braked and drove on the lane’s striped lines; Joseph smelled of alcohol; Joseph had bloodshot and watery eyes; Joseph slurred his speech; Joseph was found slumped in the driver’s seat when contacted; Joseph had difficulty following directions; Joseph had an unbalanced walk; Joseph was sweating in very cold weather; and Joseph refused a breath or blood test to determine the level of intoxication. There is no clear error of fact.

When stopped for speeding, Joseph showed signs of extreme intoxication independent of anything he might have said to law enforcement (assuming he was in custody and assuming he said anything). Even if this Court excluded all statements made by Joseph (which Joseph failed to list) and all evidence derived from those statements during the traffic stop, there would still be more than ample evidence based on the observations of law enforcement to find Joseph guilty beyond a reasonable doubt for DUI, speeding, and reckless driving. Accordingly, we AFFIRM the trial court’s convictions.

 

However, the trial judge should have ruled on the motion. See Southern Ute Indian Tribal Code § 4-1-104(2)(c)(ii) (requiring hearing on motion to suppress before trial). But the failure to rule on the motion does not mean the motion would have or should have been granted. The failure to rule will be deemed a denial. But even if the motion was presumed granted and all statements made by Joseph suppressed, as discussed below, there was sufficient observational evidence to convict him beyond a reasonable doubt anyway. His statements were not used as evidence by the trial judge to convict so any failure to rule on the motion to suppress those statements was harmless error at best.