United States v. Butler
| Decision Date | 11 September 2018 |
| Docket Number | Case No. 3:16-po-00183 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DANIELLE BUTLER, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Danielle Butler was driving within a federal enclave near Wright-Patterson Air Force Base when a patrolman with base security forces pulled her over due to her alleged violation of Ohio traffic law. The Government asserts that for various reasons—including the smell of alcohol emanating from Butler—"the patrolman asked [Butler] to consent to Standardized Field Tests." (Doc. #15, PageID #36). Butler allegedly agreed to take the test, but things did not go well and the patrolman detained her.
The Government states, "[F]ollowing standard protocol, [Butler] was read the Federal Implied Consent Law taken from Section 3118 of Title 18 of the United States Code, which put her on notice that a refusal to provide a valid sample of her breath for testing would result in suspension of driving privileges on federal property." (Doc. #15, PageID #s 36-37). She was then given several opportunities to take a breathalyzer test. She allegedly refused.
Butler contends that the officers gave her inadequate notice of the consequences of her refusal to take a breathalyzer test because they invoked the notice requirements set forth in the federal implied-consent statute, 18 U.S.C. § 3118, rather than the more detailed notice mandated by Ohio Rev. Code §§ 4111.19(A)(2)(b) and 4111.192. This, she concludes, violated the Assimilative Crimes Act (ACA) and her rights under the Due Process Clause of the Fifth Amendment to the Constitution. The Government maintains that the notice the officers provided Butler did not violate the ACA or right to due process.
To place the parties' arguments in context requires information about the charges pending against Butler, the federal and Ohio DUI refusal-to-test statutes, and the Assimilative Crimes Act.
Count 1 of Superseding Information charged Butler with driving under the influence of alcohol, as a second offense within six years, in violation of Ohio Rev. Code § 4511.19(A)(1)(a), as incorporated into federal criminal law by the ACA, 18 U.S.C. §§ 7, 13.
Count 2 of a Superseding Information is also grounded on the ACA. It charges Butler with DUI in violation of Ohio Rev. Code § 4511.19(A)(2). It alleges that she committed a DUI offense within twenty years of being previously convicted of a DUI offense under Ohio Rev. Code § 4511.19(A)(2). Count 2 also accuses Butler of refusing to take a breathalyzer test after a law enforcement officer advised her "in accordance with 18 U.S.C. § 3118(a) of the consequences of a refusal to submit to said [breathalyzer] test...." (Doc. #5, PageID #8).
The federal DUI refusal-to-test statute, 18 U.S.C. § 3118, provides that a person who refuses to submit to a breathalyzer test, "after having been first 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 a period of a year commencing on the date of arrest upon which such test or tests was refused...." 18 U.S.C. § 3118(b). This notice did not indicate to Butler that her refusal to take the test might subject her to increased penalties, unlike the Ohio criminal law under which she is charged.
Butler, as indicated above, is charged with violating Ohio Rev. Code § 4511.19(A)(2).1 State of Ohio v. Hoover, 123 Ohio St.3d 418, 424 (2009). The essential elements of this criminal offense are a DUI conviction within 20 years, operation of a motor vehicle while under the influence of alcohol or drugs, and a refusal to submit to a chemical or breathalyzer test. Id. at 421. Ohio Rev. Code § 4511.19(A)(2).
This Ohio statute also requires officers to advise the arrested DUI suspect "in accordance with section 4511.192 of the Revised Code...." An arrested DUI suspect in these circumstances must be informed of the consequences of refusing to take a breathalyzer test. The statute specifically instructs officers to tell the suspect, among other things, "if you refuse to take a chemical test, you will face increased penalties if you are subsequently convicted of the state OVI." Ohio Rev. Code § 4511.192(B). The federal refusal statute does not similarly notify a DUI suspect that a refusal to test can lead to "increased penalties." See 18 U.S.C. § 3118.
With these two notice requirements—one federal; one state—potentially in play, the ACA guides the way forward.
The ACA "assimilates into federal law, and thereby makes applicable on federal enclaves such as Army [and Air Force] bases, certain criminal laws of the State in which the enclave is located." Lewis v. United States, 523 U.S. 155, 158 (1998). Its directive, although wordy, is straightforward:
Whoever within or upon any [federal enclave] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State ... in which such place is situated, ... shall be guilty of a like offense and subject to like punishment.
"The ACA's basic purpose is one of borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves." Lewis, 523 U.S. at 160 () (other citations omitted). "Under the Act, if there is no federal criminal law on point, and if a defendant's conduct would have been a state-law crime but for the fact that it was committed on federal territory, it 'becomes a federal offense....'" United States v. Pego, 567 F. App'x 323, 329 (6th Cir. 2014) (quoting, in part, United States v. Couch, 65 F.3d 542, 543 (6th Cir. 1995)).
On the negative side, the ACA does not assimilate state procedural or evidentiary law. United States v. Murphy, 3:08po101, 2012 WL 1021710, *7-8 (S.D. Ohio 2012) (Rice, D.J.).
Butler argues that the ACA required the officers to provide her with Ohio's DUI refusal-to-test notice set forth in Ohio Rev. Code § 4511.192—particularly the potential increased penalties—because (1) the ACA incorporates an entire state's criminal law, both offenses and punishments; (2) the ACA does not contemplate selective incorporation—i.e., the Government cannot charge her under Ohio's implied-consent law without providing her with Ohio's mandatory notice; and, (3) the ACA requires uniformity between state laws and any newly assimilated federal crime.
The Government contends that the officers correctly provided Butler with federal notice, under 18 U.S.C. § 3118, of the consequences flowing from her refusal to take a breathalyzer test. The Government argues that Count 2 of the Superseding Information properly assimilates Ohio's DUI refusal-to-test statute, Ohio Rev. Code § 4119.19(A)(2), and that the ACA did not require the officers to provide Butler with the Ohio notice underOhio Rev. Code § 4511.192 because its requirements are procedural or administrative, not substantive.
Resolving this debate begins with a preliminary issue: Is there a gap in federal criminal law when an arrested DUI suspect refuses to take a breathalyzer test? The answer is yes.
"Driving under the influence of alcohol within the special maritime and territorial jurisdiction of the United States is not directly actionable under the federal criminal code." United States v. Rutherford, 1:15CR321, 2016 WL 3574332, *2 (M.D. Ala. 2016). The ACA fills this gap by incorporating Ohio's criminal statutory prohibitions against DUI. See id. (); e.g., Montjoy, 2012 WL 1021710, at *1 ().
This gap in federal criminal law exists even though 18 U.S.C. § 3118 seems to cover the situation at issue here: an arrested DUI suspect who alleged refused to take a breathalyzer test on Wright Patterson Air Force Base. Although § 3118 addresses such problems, it is a procedural and administrative statute, not a criminal statute. One U.S. District Court has cogently explained:
[T]he loss of driving privileges [under 18 U.S.C. § 3118(b)] appears to be an administrative sanction rather than a subject for prosecution. It is automatically triggered by a qualifying individual's refusal to take a breath or other physiological sobriety test. Rather than being imposed after a judicial hearing, the suspension of driving privileges for one year "commenc[es] on the date of arrest upon which such test or tests was refused."
United States v. Williams, 629 F.Supp.2d 539, 543 (E.D. Va. 2009) (quoting, in part, 18 U.S.C. § 3118). Williams also reasoned:
Section 3118 also differs from most criminal statutes in the words it uses to describe the sanction: the offending driver "shall be denied the privilege of operating a motor vehicle upon the special maritime and territorial jurisdiction of the United States." 18 U.S.C. §3118(b). The denial of a privilege within a limited geographical area can be distinguished from the more obviously punitive sanctions of most criminal statutes, which deprive individuals of property, liberty, or both.
Id.; see Moore, 2011 WL 6754027, at *2 (...
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