U.S. v. Sauls

• Decision Date: 08 October 1997
• Docket Number: No. 94-1861R.,94-1861R.
• Citation: 981 F.Supp. 909
• Parties: UNITED STATES of America, v. Sean SAULS.
• Court: U.S. District Court — District of Maryland

981 F.Supp. 909

UNITED STATES of America, v. Sean SAULS.

No. 94-1861R.

United States District Court, D. Maryland.

October 8, 1997.

John Guckert, Special Assistant U.S. Atty., for U.S.

Christine Saverda Nielson, Baltimore, MD, for Sean Sauls.

OPINION

ROSENBERG, United States Magistrate Judge.

Sean Sauls was charged by violation notices with several traffic offenses occurring at Aberdeen Proving Ground, Maryland, in the vicinity of Raritan Road, on July 17, 1994. A complaint approved by the Court on October 5, 1994, was filed and superseded the violation notices issued on July 17, 1994, except as to one of the charges. All of the pending charges are charged as violations of 18 U.S.C. § 13, the Assimilative Crimes Act. The assimilated offenses are driving while intoxicated, driving while under the influence of alcohol, driving while under the influence of drugs or a combination of drugs and alcohol, driving on a highway at a time when the defendant's privilege to drive was suspended in the state of Virginia, and failing to display drivers license upon demand of a uniformed police officer, in violation of the Md.Code Ann., Trans. II, §§ 21-902(a), 21-902(b), 21-902(c), 16-303(f), and 16-112(c) (1992) respectively.¹ Subsequently, the defendant executed a waiver of his right to trial, judgment, and sentencing before a United States District Judge as well as his right to a jury trial and consented to trial before a United States Magistrate Judge without a jury.

In connection with the traffic stop a breathalyzer test (used herein as a generic term) was administered to determine the alcoholic content of the defendant's breath. In accordance with the general practice at Aberdeen Proving Ground, the military police purportedly utilized the procedures set forth in the Md.Code Ann.Trans. II, § 16-205.1 (1992) and Md.Code Ann., Cts. & Jud.Proc., §§ 10-302 through 10-305 (1995).

A motion to suppress evidence has been filed on behalf of the defendant attacking the admissibility of the chemical test, the breathalyzer result, as well as the admissibility of the presumptions that arise from the test result under Md.Code Ann., Cts. & Jud. Proc., § 10-307 (1995).

The defendant has raised the following issues concerning the chemical test: (1) the military police should have utilized the federal implied consent law under 18 U.S.C. § 3118 rather than the state procedure under Trans. II, § 16-205.1, (2) by utilizing the state procedure and not utilizing the federal procedure, the defendant was coerced into taking the chemical test and the test was not otherwise the result of a free and voluntary informed choice, (3) the test was not administered by a "qualified person" as required by Cts. & Jud.Proc. § 10-304; and therefore, the test result should not be received in evidence and (4) even if the test results are admissible at trial, the Maryland presumptions under Cts. & Jud.Proc. § 10-307 are not assimilated under the Assimilative Crimes Act as due to their evidentiary character, they are not subject to assimilation.

In the event the Court were to determine that the defendant is correct on issue No. 4, the Court, on its own, requested the parties to submit a supplemental memorandum as to whether the Court could take judicial notice that certain inferences could be drawn from the chemical test result concerning the defendant's state of sobriety when the offenses are alleged to have occurred.

The Assimilative Crimes Act provides that conduct occurring on land under the special maritime and territorial jurisdiction of the United States which is not expressly prohibited by federal law is governed by the penal laws of the state where the land is located. 18 U.S.C. 13(a). The Assimilative Crimes Act assimilates the entire substantive law of the state, including laws relating to the elements or definition and scope of an offense and laws governing the manner in which an offense is to be punished. United States v. King, 824 F.2d 313, 315 (4th Cir. 1987); United States v. Price, 812 F.2d 174, 175 (4th Cir.1987). Although the Assimilative Crimes Act assimilates state substantive law pertaining to the elements of an offense and its punishment, it does not generally adopt state procedures or rules of evidence. United States v. Wilmer, 799 F.2d 495 (9th Cir.1986), cert. denied. 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987); Kay v. United States, 255 F.2d 476, 479 (4th Cir.), cert. denied, 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958); United States v. Price, supra.

Both sides have taken the position that the federal implied consent statute applies to this case rather than Md.Code Ann. Trans. II, § 16-205.1. The Court agrees that the Maryland Statute establishes a procedural provision outside the ambit of the Assimilative Crimes Act. Accordingly, the military police were not required to follow the Maryland procedure and should have followed the procedure established by 18 U.S.C. § 3118. United States v. Roberts, 845 F.2d 226, 228-229 (9th Cir.1988), United States v. Rogers, 926 F.Supp. 1000 (D.Colo.1996), United States v. Hopp, 943 F.Supp. 1313 (D.Colo. 1996).

Transportation § 16.205.1 in pertinent part provides:

(a)(2) Any person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in this state is deemed to have consented, subject to the provisions of § 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a test if the person should be detained on suspicion of driving or attempting to drive while intoxicated, while under the influence of alcohol, while so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while under the influence of a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title. (b) No compulsion to take chemical test; consequences of refusal. — (1) Except as provided in subsection (c) of this section, a person may not be compelled to take a test. However, the detaining officer shall advise the person that, on receipt of a sworn statement from the officer that the person was so charged and refused to take a test, or was tested and the result indicated an alcohol concentration of 0.10 or more, the Administration shall:

(I) In the case of a person licensed [or unlicensed] under this title:

1. For a test result indicating an alcohol concentration of 0.10 or more at the time of testing:

A. For a first offense, suspend the driver's license [or driving privilege] for 45 days; or

B. For a second or subsequent offense, suspend the driver's license [or driving privilege] for 90 days; or

2. For a test refusal:

A. For a first offense, suspend the driver's license [or driving privilege] for 120 days; or

B. For a second or subsequent offense, suspend the driver's license [or driving privilege] for 1 year.

The statute has been construed by the Maryland Court of Appeals as requiring an affirmative consent from the individual to be tested. State v. Loscomb, 291 Md. 424, 435 A.2d 764 (1981). Rather than being an implied consent statute, it has been described as an express consent statute. State v. Moon, 291 Md. 463, 492-493, 436 A.2d 420, 435 (1981), Davidson J. dissenting. Furthermore, Form DR-15 utilized by the State of Maryland and by the military police in this case specifically advises that, "you have the right to refuse to submit to the test". Although Cts. & Jud. Proc. § 10-309(a)(2) indicates that a refusal to submit to a chemical test is admissible in evidence at trial, the Court of Appeals of Maryland has held that ordinarily the refusal is not admissible but may be admitted under some circumstances in connection with a collateral matter not related to the issue of guilt. Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991).

18 U.S.C. § 3118 provides:

(a) Consent — Whoever operates a motor vehicle in the special maritime and territorial jurisdiction of the United States consents, thereby, to a chemical test or tests of such person's blood, breath, or urine, if arrested for any offense arising from such person's driving while under the influence of a drug or alcohol in such jurisdiction. The test or tests shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving a motor vehicle upon the special maritime and territorial jurisdiction of the United States while under the influence of drugs or alcohol in violation of the laws of a State, territory, possession, or district.

(b) Effect of Refusal — whoever, having consented to a test or tests by reason of subsection (a), refuses to submit to such a test or tests, after having first been advised of the consequences of such a refusal, shall be denied the privilege of operating a motor vehicle upon the special maritime and territorial jurisdiction of the United States during the period of a year commencing on the date of arrest upon which such test or tests was refused, and such refusal may be admitted into evidence in any case arising from such person's driving while under the influence of a drug or alcohol in such jurisdiction. Any person who operates a motor vehicle in the special maritime and territorial jurisdiction of the United States after having been denied such privilege under this subsection shall be treated for the purposes of any civil or criminal proceedings arising out of such operation as operating such vehicle without a license to do so.

The defendant contends that the use of the Maryland procedure rather than following the Federal procedure invalidates the chemical test administered to him. It is contended that he was unable to make a free, voluntary and informed choice whether to consent to the chemical test. Specifically, it is contended that he may have refused the test upon being informed...