United States v. Muir

• Decision Date: 28 August 2014
• Docket Number: Case No. 8:13-mj-03005-TMD
• Parties: UNITED STATES OF AMERICA v. DAVID C. MUIR, Defendant
• Court: U.S. District Court — District of Maryland

UNITED STATES OF AMERICA v. DAVID C. MUIR, Defendant

Case No. 8:13-mj-03005-TMD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

August 28, 2014

MEMORANDUM OPINION AND ORDER OF COURT

This matter is before the Court on Defendant's Motion to Suppress Search and Seizure. ECF Nos. 14, 15. On July 10, 2014, a hearing was held at which United States Park Police ("USPP") Officer Charles Barner and Defendant testified. The parties thereafter filed supplemental briefs. ECF Nos. 16, 17. For the reasons stated below, Defendant's Motion (ECF No. 14) is DENIED.

BACKGROUND

On August 17, 2013, at about midnight, Officer Barner was driving his fully marked USPP cruiser eastbound on the Suitland Parkway, west of the intersection with Naylor Road, an area within the special maritime and territorial jurisdiction of the United States. At that location the Suitland Parkway consists of three lanes—two for through traffic and a right-turn lane to turn south onto Naylor Road. While Officer Barner was in the right-turn lane, he observed a vehicle ahead of him in the left through lane travelling at a high rate of speed. Officer Barner decided to make a traffic stop of that vehicle. Before moving to the left to pursue that vehicle, Officer Barner activated his overhead lights and looked behind to make sure it was safe for him to moveto the left. At that point he observed Defendant's vehicle approaching from the rear in the right through lane. Defendant maintained his lane and speed as he passed Officer Barner's cruiser, coming to within one to one and a half feet of striking the front end of the police cruiser. After Defendant passed the cruiser, Officer Barner pulled in behind Defendant. Officer Barner intended to stop Defendant to inform him that it was unsafe to pass the officer as he did.

After pursuing Defendant's vehicle for about five minutes, Officer Barner ultimately stopped him in the District of Columbia and, after directing him to exit his vehicle, handcuffed and searched him. Because Officer Barner detected an odor of alcohol from Defendant, the officer conducted a horizontal-gaze nystagmus test on Defendant. As a result of Defendant's performance on the test, Officer Barner arrested him and placed him in the back of his cruiser. Defendant's vehicle was impounded.

Officer Barner transported Defendant to the District 5 station, which took about seven to ten minutes, where Defendant's handcuffs were removed and, according to Defendant, he passed other field sobriety tests. According to the officer, following a twenty-minute observation period in the processing area, he read to Defendant the following USPP Form 21C ("Form 21C") while they were seated at a desk:

36 CFR CHEMICAL TESTING NOTICE

There is probable cause to believe that you were operating or were in physical control of a motor vehicle while under the influence of alcohol and/or drugs to the degree that rendered you incapable of safe operation, in violation of 36 CFR 4.23. The regulation requires you to submit to one or more tests of your breath, blood, urine, and/or saliva at the direction of a law enforcement officer to determine the sample's alcohol and/or drug content. Refusal to provide one or more samples of breath, blood, urine and/or saliva for testing is PROHIBITED. Your consent is NOT required to obtain any sample, and a sample MAY BE taken without your permission.

If a sample cannot be obtained through the reasonable efforts of the police, you will be charged with refusal to submit to chemical testing, an offense that carries a

maximum penalty of imprisonment for six months, a fine of $5000.00, or both, and a special assessment fee of $10.00 and a processing fee of $25.00. Furthermore, evidence of refusal may be admissible in any related judicial proceeding.

Gov't Ex. 1. Below these paragraphs on the form, a section titled "PERSON RECEIVING NOTICE (Check boxes that apply-if able/not handcuffed)" delineated three options: (1) "I Will Submit To Testing," (2) "I Refuse to Submit To Testing," and (3) "Sample Taken Without Consent or Permission."

According to Defendant, Officer Barner did not read the form to him. Rather, the officer told him that it would be illegal not to take the test and that there would be ramifications for failing to do so. In any event, Officer Barner gave the form to Defendant and instructed him to read it. After Defendant complied, Officer Barner explained that he was testing only Defendant's breath, discussed the three boxes on the form, and directed him to check one of the boxes and sign the form with a pen provided to Defendant.

Defendant checked the box marked "I Will Submit To Testing," although at the hearing he did not recall doing so. According to Officer Barner, he did not direct Defendant to check the box. Defendant and Officer Barner then completed and signed the form. After Officer Barner instructed Defendant on how to perform the breath test, he submitted to the breath test by blowing into a mouthpiece with a tube attached to an Intoximeter 5000. As a result of the breath test, Defendant was charged with, among other offenses, driving under the influence of alcohol in violation of 36 C.F.R. § 4.23(a)(1) and (2).

DISCUSSION

Defendant seeks to have the breath test in this case suppressed because the police failed to obtain a warrant prior to administering the test. Def.'s Mem. Supp. Mot. Suppress 1-6, ECF No. 15. Specifically, Defendant maintains that the warrantless breath test in this case does notfall within any of the following recognized exceptions to the warrant requirement: exigent circumstances, consent, or search incident to arrest. Id. at 2-6.

Title 36 C.F.R. § 4.23 provides:

(a) Operating or being in actual physical control of a motor vehicle is prohibited while:

(1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or

(2) The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph.

(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.

(c) Tests.

(1) At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood alcohol and drug content.

(2) Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissable [sic] in any related judicial proceeding.

(3) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.

(4) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.

(d) Presumptive levels.

(1) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph (a)(1) of this section. If the alcohol concentration in the operator's blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (a)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol.

(2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof.

36 C.F.R. § 4.23 (emphasis added). Section 4.23(c)(2) is a substantive offense. United States v. Francisco, 413 F. App'x 216, 219 (11th Cir. 2011) (per curiam) (citing United States v. Brown, 364 F.3d 1266, 1268-69 (11th Cir. 2004)). Indeed, a person can be charged under § 4.23(c)(2) with refusal and face a penalty of up to 6 months' incarceration and/or a fine of up to $5,000.00. 18 U.S.C. §§ 19, 3559(a)(7), 3571(b)(6); 36 C.F.R. § 1.3(a).

Title 18 U.S.C. § 3118 further 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. Anyperson who operates a motor

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