U.S. v. Mason, CIV. A. 01-7004M.

• Decision Date: 11 April 2001
• Docket Number: No. CIV. A. 01-7004M.,CIV. A. 01-7004M.
• Citation: 143 F.Supp.2d 1241
• Parties: UNITED STATES of America, Plaintiff(s), v. Tracy D. MASON, Defendant(s).
• Court: U.S. District Court — District of Colorado

143 F.Supp.2d 1241

UNITED STATES of America, Plaintiff(s), v. Tracy D. MASON, Defendant(s).

No. CIV. A. 01-7004M.

United States District Court, D. Colorado.

April 11, 2001.

Daniel Geoffrey Osgood Kay, Daniel G. Kay, Colorado Springs, CO, for defendant.

MEMORANDUM OPINION AND ORDER

COAN, United States Magistrate Judge.

This matter was before the Court for trial in Colorado Springs on April 5, 2001. The prosecution was represented by Robert J. Mullins II, Special Assistant United States Attorney, and defendant was represented by Daniel G. Kay, attorney at law. Defendant, through his counsel, filed three motions to suppress evidence, which motions were heard on April 4 and 5, 2001 in Colorado Springs, Colorado. The Court denied the motions to suppress on the record on April 5, 2001. Following trial, the Court took the matter under advisement.

I.

The prosecution presented the testimony of Specialist Jason G. Baccus, Staff Sergeant Shawn M. Harris, Private First Class Hendrickson, Sergeant Jerry Thornton and Melissa Cobb, who was qualified as an expert in the methodology of testing blood for alcohol content. Mr. Mason testified, as did his expert witness, Patricia Sulik, who was qualified as an expert in analytical chemistry and toxicology. The United States' exhibits 1, 4, 5, 6, 7, and 8 and defendant's exhibits A, B, C, D, F, G, and H were admitted into evidence.

The evidence presented at trial established the following. On October 10, 2000, Mr. Mason and his friend Anna Stanley spent several hours at a local bar, drinking and playing pool. Mason testified that he had consumed two beers¹, that Stanley was drunk and that he was not.

The parties stipulated that defendant then operated a motor vehicle and that Mr. Mason was stopped at Gate 20 on the Fort Carson military installation, which is within the special maritime and territorial jurisdiction of the United States. PFC Hendrickson stopped the black Dodge Avenger Mr. Mason was driving, and in which Stanley was a passenger, at approximately 12:10 a.m. on October 10, 2000. 100% of the vehicles entering Fort Carson at that gate were stopped on October 10, 2000 to check vehicle and driver identification and to determine whether drivers had been drinking.

When Hendrickson asked for Mason's identification, he noticed a strong odor of alcohol coming from inside the vehicle. He asked Mason to step out of the vehicle to the guard shack. Hendrickson testified that Mason had trouble keeping his balance, and placed his hand against the vehicle door and on the vehicle to keep his balance. Because he suspected that Mason had been drinking and driving, Hendrickson began to escort Mason to the visitor center, a well lit, level area. The parties stipulated that Hendrickson asked Staff Sergeant Harris to help administer field sobriety tests and that Harris did administer field sobriety tests in the visitors' center. Hendrickson observed that a strong odor of alcohol emanated from Mason, his balance was not good, Mason's eyes were red and glassy, and that Mason was probably scared and nervous.

Harris identified Mason at trial. Harris testified that he had been trained and was experienced in field sobriety test administration. Harris said that he helped Hendrickson escort Mason to the visitor center, that Mason's eyes were red, and that Mason smelled of alcohol and staggered slightly. Harris stated that Mason appeared nervous, and that his speech was mumbled and thick tongued. See also Government Ex. 1. Harris told Mason that due to the smell of alcohol and Mason's staggering, Harris wanted to administer field sobriety tests to determine whether Mason had been drinking. When Harris asked for Mason's consent, Mason said he had been drinking.

Harris explained and demonstrated the field sobriety tests to Mason, and said he had to repeat the directions. Harris then administered the finger to nose, walk and turn and stand and balance tests. Harris stated that Mason started too soon and failed to touch his finger to his nose even though given three tries for each hand, failing the test. On the walk and turn test, Harris observed that Mason failed to maintain heel to toe contact more than 50% of the time, failed to perform the requisite number of steps and stopped during the test. Mason failed this test. Harris next administered the stand and balance test. Harris testified that Mason was swaying and counting to himself as he attempted the test, which he also failed. See also Government Ex. 1.

The parties stipulated that: Mason was apprehended, which is the military term for arrested, and transported to the Provost Marshall's Office, where Sergeant Thornton advised Mason of his "Implied Consent to Certain Tests"; Mason signed the implied consent form, electing a blood test. The parties further stipulated that Mason did not consume any alcohol from the time he was pulled through to the time his blood was drawn.

At approximately 2:00 a.m. on October 10, 2000, Specialist Baccus, a medic, used a sterile "legal blood draw" kit to draw Mason's blood. Baccus testified he swabbed the area with iodine, used an 18 gauge needle and withdrew two vials of Mason's blood, which he sealed. He then verified with Mason his name, social security number, and that the vials were sealed. Baccus placed the vials in a bio-hazard bag with a chain of custody document and released them to Specialist Harris, the evidence custodian.

On October 16, 2000, Melissa Cobb retrieved the Mason vials from the lock box in the refrigerator at Evans Community hospital, verified the name and social security number, and verified that the evidence tape was intact. See Government Ex. 4. She then placed one of the vials in her pocket, centrifuged the other vial, and, using the Dade Dimension RAL Analyzer ("Dade"), said that she tested Mason's whole blood or serum sample and found it to contain 0.086 grams of alcohol per 100 milliliters of blood. Government Ex. 8, p. 2. Cobb was qualified to operate the Dade, which she testified, is generally accepted in the industry, and was in proper working order.

Mason's expert, Patricia Sulik, testified that she is an associate director of Rocky Mountain Laboratories in Fort Collins, Colorado. The laboratory has been certified by the Colorado Department of Health. Sulik received a tube of whole blood which was cracked from Evans Community Hospital by federal express air bill. She stated that the vial she received did not have the sodium fluoride concentration marked on the vial. Sulik stated that if the blood cells are not distributed evenly through a serum sample, the alcohol content in separated serum can be as much as 20% higher than the whole blood content. She said that testing whole blood is more accurate but that serum can also be tested accurately. When Sulik, using a gas chromatograph, tested the vial of Mason's blood, she found the alcohol content to be 0.064 grams of alcohol per 100 milliliters of blood. Sulik said that because there was a 25% difference between her result and Cobb's result, she had questions as to the accuracy of both samples, and that she was not sure that either sample reflected the defendant's blood alcohol content.

Mason was charged by information with driving a vehicle while his ability was impaired in violation of Title 18, U.S.C., § 13, incorporating Colo.Rev.Stat. § 42-4-1301(1)(b), a Class B misdemeanor. See January 24, 2001 Information. He pled not guilty to the charge.

II.

On October 10, 2000 in the early morning hours, 100% of the vehicles entering Fort Carson were stopped before being granted permission to proceed onto the post. A 100% stop means that the military installation is "closed," so that any vehicle given permission to enter the installation may be searched without probable cause. See United States v. Vaughan, 475 F.2d 1262 (10th Cir.1973). Hendrickson had probable cause to ask that Mason exit his vehicle due to the strong smell of alcohol coming from the vehicle. See United States v. Santiago, 846 F.Supp. 1486 (D.Wyo.1994). When Hendrickson and Harris determined that Mason smelled strongly of alcohol, staggered slightly, had red eyes and mumbled speech, and heard him state that he had been drinking, they had probable cause to administer field sobriety tests. When Mason failed the field sobriety tests, there was probable cause to ask Mason for his consent to a blood alcohol test.²

Mason is African American and of slight build. He stated that he was not afraid of being stopped at the gate because he had been stopped before. He maintained that: he did not pass the field sobriety tests because he has known people who have been "yanked around" by police, the military police escorting him were very close to him; the visitor center space was small and he felt closed in; and, he was nervous and scared of Hendrickson and Harris who seemed "humongous" to him. He acknowledged on cross examination that no one threatened or tried to intimidate him.

The Court finds that Mason was incredible when he testified that he was so afraid of the military police that he failed the roadside sobriety tests. Even if plaintiff was afraid of the military police and failed the roadside sobriety tests solely because of his fear, there was other significant evidence of Mason's impairment by alcohol including his slurred speech, his red eyes, his using the vehicle to steady his balance, his admission he had been drinking, and the results of two blood tests, which showed a blood alcohol level of 0.064 to 0.086 Gms/100ml of blood.

Mason also argued that the chain of custody of his vials of blood had not been maintained. The concept of a chain of custody of evidence is to ensure that evidence is not lost,...