United States v. Channel

• Decision Date: 30 September 1976
• Docket Number: Crim. No. K-76-0279.
• Citation: 423 F. Supp. 1017
• Parties: UNITED STATES of America v. Richard Woodward CHANNEL.
• Court: U.S. District Court — District of Maryland

423 F. Supp. 1017

UNITED STATES of America v. Richard Woodward CHANNEL.

Crim. No. K-76-0279.

United States District Court, D. Maryland.

September 30, 1976.

Jervis S. Finney, U. S. Atty., Marsha A. Ostrer, Asst. U. S. Atty., Baltimore, Md., assisted by Howard Schulman, law student at the University of Baltimore, for the United States.

Charles G. Bernstein, Federal Public Defender, Michael Schatzow, Asst. Federal Public Defender, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, District Judge.

In this appeal taken from a judgment of conviction by a United States Magistrate, the scope and standard of review are the same as those in an appeal to a Circuit Court of Appeals from a District Court. Rule 8(d), Federal Rules for the Trial of Minor Offenses before United States Magistrates. In this case, Channel was charged with several offenses in violation of Md.Ann.Code art. 66½ (1970 Repl. Vol.), as amended (1975 Cum.Supp.), involving operation of a motor vehicle on a United States military reservation. Pursuant to 18 U.S.C. §§ 7(3), 13, Maryland law is applicable. See United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958). See also United States v. Bales, 538 F.2d 325 (4th Cir. 1976). Specifically, Channel was charged with (1) failure to stop after an accident, Md.Ann.Code art. 66½, § 10-103; (2) driving while intoxicated, Md.Ann. Code art. 66½, § 11-902(a); and (3) failure to slow to avoid a collision, Md.Ann.Code art. 66½, § 11-801(a). At trial before the Magistrate, Channel, as he is in this Court, was represented by an assistant federal public defender. After the Government rested its case, the Magistrate granted defendant's motions for acquittal as to the charges dealing with failure to slow and with failure to stop, leaving outstanding only the charge of driving while intoxicated. On that remaining charge the Magistrate convicted defendant and sentenced him to ten months' confinement. From that judgment of conviction defendant appeals.

At trial, a passenger in a Chevrolet van which was involved in an accident in the early A.M. hours of January 17, 1976 with a Ford automobile in which Channel was riding, testified that before the accident, the Chevrolet van passed the Ford car and the latter was zigzagging on the road; that thereafter when the van stopped at an intersection, the Ford struck the van in the rear and later left the scene of the accident; and that before the Ford departed from that scene, he observed Channel standing by an open door on the driver's side of the Ford.¹ Further, that witness testified that the van thereupon followed the Ford and that the latter again was zigzagging. Another passenger in the van also testified, generally corroborating the first said witness' testimony. That second witness indicated that, after the accident, the Ford zigzagged to the extent of crossing the center line by two or three feet every five seconds.

Officer Prchaska of the Maryland State Police testified that later that same morning after the occupants of the van reported those events, he was dispatched to find the Ford and found it parked with its motor running in a driveway leading to a state warehouse with Channel sitting in its driver's seat. Prchaska stated that when he arrested Channel a short time thereafter there was a very strong odor of alcohol about Channel's person and Channel's eyes appeared glassy and blood shot and his speech was slurred. Prchaska further testified that he had to help Channel into the police car and up the steps of the police barracks.

Sergeant Howard Franklin of the military police testified that Channel, still later during that same morning, walked "in a heavy staggering gait" and that Franklin could smell alcohol approximately six feet from the defendant. Franklin also stated that Channel's eyes were blood shot and heavy and his speech was slurred.

Channel's wife, son and stepdaughter were called as witnesses by the defendant. Their testimony indicated that the defendant had been drinking earlier in the evening at a bowling alley; that the defendant's car would not start when the family left the bowling alley; and that the defendant remained with the car. They also testified that when the defendant subsequently failed to turn up at home, they returned to search for him and found him asleep in his car and could not awaken him. The son and the stepdaughter further testified that they smelled beer about Channel's person. Additionally, they testified that Channel's minor stepdaughter, who did not possess a driver's license, undertook to drive her father home and was the operator of the vehicle at the time of, and after, the accident. The stepdaughter stated that Channel remained asleep until the force of the accident threw him to the floor of the car. The Magistrate found that Channel himself operated the motor vehicle. A review of the record discloses more than sufficient evidence for the Magistrate so to have found beyond a reasonable doubt.²

Channel argues that even if the evidence was sufficient to establish beyond a reasonable doubt that Channel was driving while his ability was impaired by the use of alcohol, the evidence was insufficient to support the finding beyond a reasonable doubt of driving while intoxicated. Md.Ann.Code art. 66½, § 11-902 provides:

(a) It shall be unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while he is in an intoxicated condition.

(b) It shall be unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while his driving ability is impaired by the consumption of alcohol.

* * * * * *

Md.Ann.Code art. 66½, § 17-101 provides:

(i) Every person who is convicted of a violation of * * * subsection (a) of § 11-902 shall be punished by imprisonment for not more than one year or by fine of not more than $1,000 or both fine and imprisonment.

On a second or subsequent conviction he may be punished by imprisonment for not more than two years, and in the discretion of the court, a fine of not more than $1,000.

(ii) Every person who is convicted of a violation of * * * § 11-902(b) of this article shall be punished by a fine of not more than $500 or by imprisonment for not more than 2 months or by both fine and imprisonment.

(iii) Every person who is convicted of a second or subsequent violation of * * subsection (b) of § 11-902 may be punished by imprisonment for not more than one year, and in the discretion of the court, a fine of not more than $500.

Defendant contends that the statutory term "intoxicated" has never been adequately defined by the Maryland legislature or courts and that therefore section 11-902(a) is unconstitutionally vague. In support of that contention, Channel refers to Md.Ann.Code, Cts. & Jud.Proc. Art., § 10-307 — Chemical Test for Intoxication — Results of analysis and presumptions. That section provides:

(a) In general. — In a proceeding in which a person is charged with driving or attempting to drive a vehicle in violation of § 11-902 of Article 66½ of the Code, the amount of alcohol in the person's breath, blood, or urine shown in chemical analysis as provided in this subtitle is admissible in evidence and has the effect set forth in subsection (b) through (e).

(b) No intoxication presumed. — If there was in his blood at the time of testing 0.05 percent or less, by weight, of alcohol, as determined by an analysis of his blood or breath, or if there was in his urine 0.08 percent or less, by weight, of alcohol, it shall be presumed that the defendant was not in an intoxicated condition, that his driving ability was not impaired by the consumption of alcohol, and that he was not under the influence of intoxicating liquor.

(c) No presumption. — If there was in his blood at the time of testing more than 0.05 percent, but less than 0.10 percent, by weight, of alcohol, as determined by an analysis of his blood or breath, or if there was in his urine more than 0.08 percent, but less than 0.13 percent, by weight, of alcohol, this fact may not give rise to any presumption that the defendant was or was not in an intoxicated condition or was or was not under the influence of intoxicating liquor, or that his driving ability was or was not impaired by the consumption of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.

(d) Prima facie evidence of impairment. — If there was in his blood at the time of testing 0.10 percent, or more, by weight, of alcohol, as determined by an analysis of his blood or breath, or if there was in his urine 0.13 percent, or more, by weight, of alcohol, it shall be prima facie evidence that the defendant's driving ability was impaired by the consumption of alcohol.

(e) Prima facie evidence of intoxication. — If there was in his blood at the time of testing 0.15 percent, or more, by weight, of alcohol, as determined by an analysis of his blood or breath, or if there was in his urine, 0.20 percent, or more, by weight, of alcohol, it shall be prima facie evidence that the defendant was in an intoxicated condition.

Under Maryland law it is not necessary that intoxication be proven by scientific test or expert testimony. Judge Orth, then Chief Judge of the Court of Special Appeals, recently upheld convictions under both subsections of section 11-902, writing as follows:

The introduction of evidence with respect to the alcoholic content in the accused's body, as shown upon chemical analysis through tests pursuant to Courts Art. §§ 10-302 through 10-309, is not a prerequisite to a conviction of the crimes proscribed by Art. 66½, § 11-902(a) and (b). Conviction may be had on any competent evidence legally sufficient to establish the corpus delicti of the crimes and the criminal agency of the accused.

Major v. State, 31 Md.App. 590, 358 A.2d 609, 613 (1976).

In this case, no...