Kay v. United States, No. 7599.
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
| Writing for the Court | SOBELOFF and HAYNSWORTH, Circuit , and WILLIAMS |
| Citation | 255 F.2d 476 |
| Parties | Ernest KAY, Appellant, v. UNITED STATES of America, Appellee. |
| Docket Number | No. 7599. |
| Decision Date | 17 May 1958 |
255 F.2d 476 (1958)
Ernest KAY, Appellant,
v.
UNITED STATES of America, Appellee.
No. 7599.
United States Court of Appeals Fourth Circuit.
Argued March 5, 1958.
Decided May 17, 1958.
Harlan E. Freeman, Arlington, Va., for appellant.
Henry St. J. FitzGerald, Asst. U. S. Atty., Alexandria, Va. (L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., on the brief), for appellee.
Before SOBELOFF and HAYNSWORTH, Circuit Judges, and WILLIAMS, District Judge.
HAYNSWORTH, Circuit Judge.
This is an appeal from a conviction, in the United States District Court for the Eastern District of Virginia, at Alexandria, upon both counts of an information charging the defendant with driving on a Federal parkway, within the territorial limits of Virginia, while under the influence of intoxicants and with reckless driving.
One afternoon, after his work as a truck driver was done, the defendant, his
The questions raised on appeal grow out of the receipt in evidence of a report of a chemical analysis of the blood of the defendant and the instructions to the jury regarding it.
The Assimilative Crimes Act of 1948 (18 U.S.C.A. § 13) makes applicable here the Virginia statute which prohibits one from driving an automobile "while under the influence of alcohol * * *." (§ 18-75, Code of Virginia) and the Virginia statute which prescribes penalties for the offense (§ 18-76, Code of Virginia). It was assumed in the Court below, and the defendant has raised no question about it here, that the Assimilative Crimes Act also adopted Chapter 557 of the Acts of the General Assembly of the Commonwealth of Virginia, Regular Session, 1956 (§§ 18-75.1, 18-75.2, 18-75.3). The new § 18-75.1 provides for a chemical analysis of a blood sample taken with the consent of one accused of a violation of § 18-75; new § 18-75.2 directs the receipt in evidence of a certificate showing the result of the analysis, while new § 18-75.3 establishes certain presumptions which arise out of the finding of the alcoholic content of the sample.1
The constitutionality of the revised Assimilative Crimes Act in its adoption of subsequently enacted state criminal statutes has recently been sustained. United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282. The Act, however, does not generally adopt state procedures. Indeed state interpretation of the adopted statutes is not binding upon a federal court,2 and federal, rather than state, rules of evidence are applicable to all prosecutions under the Act.3 But, while § 18-75.1 may be said to be largely procedural, it is a preliminary, pre-judicial procedure which may be employed only with the consent of the accused. It is designed for the protection of the accused, to insure the reliability of the report of the test and to protect the validity of the presumptions established by § 18-75.3. Those presumptions are not merely procedural, for they amount to a redefinition of the offense.
Prior to 1956, the offense of driving "while under the influence of alcohol" had not been defined with particularity in the statutes of Virginia. The Supreme Court of Appeals of Virginia held in 1927 that the crime was made out if the driver was under the influence of alcohol to any extent and that it was unnecessary for the Commonwealth to prove that the influence of the alcohol was sufficient to affect his ability to drive with safety. Owens v. Commonwealth, 147 Va. 624, 136 S.E. 765. More recently, the Supreme Court of Appeals of Virginia applied to this offense, and to other statutes proscribing particular conduct when the actor is intoxicated or under the influence of alcohol, the statutory definition of
The defendant complains that the vial containing the residue of the blood sample and the certificate showing that the alcoholic content of the sample had been determined by chemical analysis to be 0.15 per cent were improperly received in evidence. Since no question was raised as to their proper identification, their receipt in evidence was required by the terms of § 18-75.2, and, in a federal court, the certificate would have been admissible, in any event, under the provisions of 28 U.S.C.A. § 1732, as a writing made, pursuant to statutory requirement, in the regular performance of the official duty of the Chief Medical Examiner of Virginia. One of the obvious purposes of the Act of 1956 was to prescribe a uniform procedure with adequate safeguards and to provide for proof of the result of the analysis without the necessity of producing as a witness every person through whose hands the sample may have passed in the completion of the established routine.
The receipt in evidence of the certificate does not foreclose, as the defendant suggests, inquiry into the regularity of the procedure, the freedom of the sample from contamination or the accuracy of the chemical analysis. The questions raised by him as to the qualification of the person taking the sample,4 the possibility of contamination from the fact that...
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...Rules of Evidence 63(15), 63(30), 63(31); Gilstrap v. United States, 389 F.2d 6 (CA5 1968) (business records); Kay v. United States, 255 F.2d 476 (CA4 1958) (laboratory analysis). If the hearsay exception involved in a given case is such as to commend itself to reasonable men, production of......
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...sufficient to insure the integrity of the fact finding process. Dutton v. Evans, supra; Mancusi v. Stubbs, supra; Kay v. United States, 255 F.2d 476 (4th Cir.1958). Cf. Chambers v. Mississippi, supra; California v. Green, supra; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 5......
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Coulter v. State, No. 45393
...sufficient to insure the integrity of the fact finding process. Dutton v. Evans, supra; Mancusi v. Stubbs,supra; Kay v. United States, 255 F.2d 476 (4th Cir. 1958) and cf. Chambers v. Mississippi, supra; California v. Green, supra; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2......
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People v. McClanahan, No. 86953.
...of Drug Enforcement Agency report and citing in support United States v. Frattini, 501 F.2d 1234 (2d Cir.1974), Kay v. United States, 255 F.2d 476 (4th Cir.1958), United States v. Ware, 247 F.2d 698 (7th Cir.1957), State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975) (en banc), In re Kevin G......