U.S. v. McFarland, No. CR-04-07-PO.

• Decision Date: 09 May 2005
• Docket Number: No. CR-04-07-PO.
• Citation: 369 F.Supp.2d 54
• Parties: UNITED STATES of America v. William R. McFARLAND, Defendant.
• Court: U.S. District Court — District of Maine

Page 54

369 F.Supp.2d 54

UNITED STATES of America v. William R. McFARLAND, Defendant.

No. CR-04-07-PO.

United States District Court, D. Maine.

May 9, 2005.

James M. Moore, Bangor, ME, for United States of America.

ORDER ON APPEAL

WOODCOCK, District Judge.

This appeal addresses the question of when a driver is in "actual physical control" of his vehicle. Acting as an appellate court, this Court concludes there is sufficient evidence that the Defendant was in "actual physical control" of his vehicle to support a conviction of the misdemeanor charge of operating a motor vehicle while under the influence. This Court further concludes the Defendant was on fair notice his actions could constitute criminal conduct. This Court, therefore, AFFIRMS the Defendant's conviction.

I. BACKGROUND

A. The Facts

On October 10, 2004, responding to a dispatch, Park Rangers Clayton Pope and Bill Boudreau located a stationary white pick up truck at about 1:40 p.m. in the Compass Harbor parking lot within the town of Bar Harbor inside the boundary of Acadia National Park. Tr. at 7-8, 20, 23. As the Rangers approached the truck, they discovered the Defendant, William McFarland, "slumped over into the middle of the vehicle" with the keys in the ignition. Id. at 8. The pick up's hood was warm. Id. at 8-9. A third ranger, David Smith, arrived and proceeded to arouse Mr. McFarland. Id. at 9-10. The Ranger asked his name and requested his identification, vehicle registration, and evidence of insurance. Id. at 26. Once aroused, however, Mr. McFarland kept drifting off to sleep and the ranger had to make "several attempts" to awaken him. Id.

Mr. McFarland confirmed his name and told Ranger Smith he was just taking a nap. Id. at 26-27. Asked where he was, Mr. McFarland repeatedly responded "in Bar Harbor," but he was unable to identify any streets or landmarks. Id. at 27. Smelling alcohol on Mr. McFarland's breath, Ranger Smith asked him to step from the vehicle, and after some difficulty, Mr. McFarland exited the vehicle and stumbled. Id. at 26-28. Ranger Boudreau assisted Mr. McFarland to the police cruiser where he was allowed to sit on the hood. Id. at 11, 28. Mr. McFarland consented to a search of his vehicle which resulted in the discovery of a bag of marijuana, two pipes, and two bottles of alcohol — one half-gallon of vodka with about one ounce left and one 750 milliliter of rum "with just a little bit less than half the bottle left." Id. at 11-12, 15. The vodka was in the extended cab of the vehicle and the rum was in a bag on the passenger floor board. Id. at 15. Ranger Pope testified the bottles and marijuana were within arms reach of where Mr. McFarland was found in the vehicle. Id. at 12, 15. Mr. McFarland also had a scanner in his vehicle that could be used to monitor police and government frequencies. Id. at 35-36.

After learning Mr. McFarland had severe arthritis, Ranger Smith administered three sobriety tests that required minimal walking or other movement. Id. at 29. Mr. McFarland failed each test. Id. at 29-31. On the way to the Bar Harbor Police Department, Mr. McFarland was "glassy-eyed," "couldn't focus real well," and acted like he had to vomit. Id. at 19, 31. The parties stipulated to the admission of the results of the intoxilyzer test, which showed that Mr. McFarland had a blood-alcohol level of .31 percent. Id. at 41.

B. The Charge

Mr. McFarland was charged in a two-count Information (Docket # 1): Count I alleged on or about October 10, 2004, Mr. McFarland "was knowingly and willfully in actual physical control of a motor vehicle in a park area at Acadia National Park while he had a blood-alcohol level in excess of 0.08% and while he was under the influence of alcohol to a degree that rendered [him] incapable of safe operation of said vehicle" in violation of 36 C.F.R. § 4.23(a); Count II alleged on the same date, Mr. McFarland "knowingly and willfully possessed a controlled substance, approximately ten (10) grams of marijuana, within a park area at Acadia National Park" in violation of 36 C.F.R. § 2.35(b)(2).

C. The Verdict

Pursuant to 18 U.S.C. § 3401, trial was held on November 16, 2004 before Magistrate Judge Margaret Kravchuk. At the close of the evidence, Mr. McFarland argued the Government had failed to establish he was in "actual physical control" of the vehicle. Tr. at 44. He asserted that "actual" does not mean "potential" or "probable" and suggested Maine case law regarding whether a person is "operating" a vehicle is analogous. Id. The Magistrate Judge rejected this contention: "[I]f they were similar, it would be operating or attempting to operate. That isn't the charge.... They use different language." Id. Defense counsel also argued that § 4.23(a)(1) should be void for vagueness. Id. at 46.

The Magistrate Judge ruled as follows:

Based on the evidence presented here, and giving due deference to [Defense counsel's] discussion of what actual physical control means, I'm satisfied that the Government has proven beyond a reasonable doubt that Mr. McFarland was in actual physical control of the motor vehicle. I do think that the fact that the motor vehicle had been relatively recently operated is a fair inference to draw from this evidence based upon the heat from the hood of the vehicle. I also think that actual physical control as opposed to hypothetical physical control would be something like saying Mr. McFarland was home in his house with the keys and this truck was discovered in this parking lot, and they tried to say he was in actual physical — and he was drunk at his house — that he was in actual physical control of the vehicle, then I might have some doubts that that standard had been met. But in this case, it's more than hypothetical. He's sitting behind the wheel of a fairly recently operated motor vehicle, judging by the heat from the hood. He has the keys, he has access to the registration, he gets it out, he knows where it is, I don't know what else the Government could demonstrate in terms of demonstrating actual physical control and not go a step further to demonstrate intent to operate, which they don't have to demonstrate apparently because it's not attempting to operate, it [is] actual physical control of the motor vehicle, so I'm satisfied they've met that burden and the defendant's guilty of that offense.

Id. at 50-51.

D. The Appeal

Mr. McFarland raises two issues on appeal: 1) whether he was in "actual physical control" of the vehicle; and, 2) whether he did so "knowingly and willfully." Def.'s Br. on Appeal to District Ct. (Docket # 26) at 3. Although found guilty of Count II, possession of marijuana in violation of § 2.35(b)(2), Mr. McFarland has not raised any issues on appeal regarding that conviction.

II. STANDARD OF REVIEW

This case is before this Court on appeal from a decision by the United States Magistrate Judge. 18 U.S.C. § 3402; Fed.R.Crim.P. 58(g)(2); see also United States v. Nachtigal, 507 U.S. 1, 113 S.Ct. 1072, 122 L.Ed.2d 374 (1993). In reviewing the Magistrate's conviction, the scope of the appeal "is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed.R.Crim.P. 58(g)(2)(D). The standard of review from a conviction entered by a Magistrate Judge is well-settled. Conclusions of law are subject to de novo review, while findings of fact are reviewed only for clear error, "just as would be the case were the matter on appeal from a District Court bench trial to a Court of Appeals." United States v. Orme, 851 F.Supp. 708, 709 (D.Md.1994), aff'd, 51 F.3d 269 (4th Cir.1995). Consistent with First Circuit authority, this Court reviews the guilty verdict to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt." United States v. Salimonu, 182 F.3d 63, 74 (1st Cir.1999)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reh'g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979)).

III. DISCUSSION

A. 36 C.F.R. § 4.23(a)(1): "Actual Physical Control"

The Code of Federal Regulations prohibits "[o]perating or being in actual physical control of a motor vehicle" while "[u]nder the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation." 36 C.F.R. § 4.23(a)(1).¹ The elements of § 4.23(a)(1) are: (1) Mr. McFarland was operating or in actual physical control of a vehicle; (2) while under the influence of alcohol to a degree of intoxication that rendered him incapable of safe operation; and, (3) within the boundaries National Park Service (NPS) lands. See United States v. Atkinson, 128 Fed.Appx. 64, 65 (10th Cir.2005); see also United States v. Salter, 28 F.3d 110 (9th Cir.1994); United States v. Davis, 261 F.Supp.2d 343, 347 (D.Md.2003). There is no dispute that the alleged offense occurred within Acadia National Park boundaries on or about October 10, 2004, and there is also no dispute that at the time of Mr. McFarland's arrest, he was intoxicated to a degree that rendered him incapable of safely operating a vehicle. Mr. McFarland focuses on whether the Government established beyond a reasonable doubt that he was in "actual physical control" of the vehicle at the time he was under the influence.

The text of § 4.23(a)(1) is illuminating. It prohibits not only operation of a motor vehicle while under the influence, but extends to "being in actual physical control" while under the influence. If "being in actual physical control" is to mean anything, it must refer to something less than actual operation. The NPS promulgated this regulation in its current form in 1987, and the NPS commentary confirms the language was amended to make certain the regulation applies "whether the vehicle is in motion or not." See generally 52 Fed.Reg. 10670, 10675 (1987)....