United States v. Sain

• Decision Date: 16 September 1985
• Docket Number: CR-85-79-W.,No. CR-85-120-W,CR-85-120-W
• Parties: UNITED STATES of America, Plaintiff, v. Harold W. SAIN, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

618 F. Supp. 270

UNITED STATES of America, Plaintiff, v. Harold W. SAIN, Defendant.

Nos. CR-85-120-W, CR-85-79-W.

United States District Court, W.D. Oklahoma.

September 16, 1985.

Michael J. Farr, Sp. Asst. U.S. Atty., William S. Price, U.S. Atty., David M. Paskach, Sp. Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff.

Hughes & Nelson, Oklahoma City, Okl., for defendant.

ORDER

LEE R. WEST, District Judge.

In CR-85-120-W, defendant is charged, pursuant to 18 U.S.C. §§ 7 and 13, and Okla.Stat. tit. 21 § 1220 (1981), with one count of transporting an open container.

In CR-85-79-W, defendant is charged, pursuant to 18 U.S.C. §§ 7 and 13, and Okla.Stat. tit. 47 § 761 (1981), with one count of driving while impaired.

These cases were consolidated for trial and are consolidated for purposes of this opinion.

Transporting an Open Container

Okla.Stat. tit. 21 § 1220 (1981) provides:

It shall be unlawful for any person to knowingly transport in any moving vehicle upon a public highway, street or alley any nonintoxicating beverage containing more than one-half of one percent (½ of 1%) alcohol by volume and not more than three and two-tenths percent (3.2%) alcohol by weight except in the original container which shall not have been opened and from which the original cap or seal shall not have been removed, unless the opened container be in the rear trunk or rear compartment, which shall include the spare tire compartment in a station wagon or panel truck, or any outside compartment which is not accessible to the driver or any other person in the vehicle while it is in motion. Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than Fifty Dollars ($50.00).

Much of the evidence in this case is in sharp conflict. The Court finds that the more credible evidence establishes the following facts:

(1) Defendant was the driver of a van that came to a stop at a guard post at Tinker Air Force Base near Oklahoma City, Oklahoma.

(2) A passenger, sitting in the front passenger seat, accompanied defendant.

(3) On the van's console, located between the driver's seat and front passenger's seat, were two open glass bottles of a name brand beer.

(4) The beer bottles were each ¼ to ½ full of a pale yellow liquid that smelled of alcohol. The bottles were still cold.

(5) When one of the guards requested the passenger surrender the beer bottles, the passenger emptied the contents of the beer bottles, thereby effectively preventing testing of the contents of the beer bottles.

This circumstantial evidence is sufficient to support findings that the beer bottles contained beer. This evidence, in addition to the other evidence presented at trial, constitutes sufficient evidence that defendant was transporting open containers of beer in violation of Okla.Stat. tit. 21 § 1220 (1981).

Driving While Impaired

Okla.Stat. tit. 47 § 761(A) (1981) provides:

Any person who operates a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol shall be subject, for a first offense, to a fine of not less than One Hundred Dollars ($100.00) nor more than Three Hundred Dollars ($300.00).

Okla.Stat. tit. 47 § 756(b) (1984 Supp.) sets forth the evidence required to convict a person of driving while impaired:

Evidence that there was, at the time of the test, an alcohol concentration in excess of five-hundredths (0.05) but less than ten-hundredths (0.10) is relevant evidence that the person's ability to operate a motor vehicle was impaired by alcohol. However, no person shall be convicted of the offense of operating or being in actual physical control of a motor vehicle while such person's ability to operate such vehicle was impaired by alcohol solely because there was, at the time of the test, an alcohol concentration in excess of five-hundredths (0.05) but less than ten-hundredths (0.10) in the blood or breath of the person in the absence of additional evidence that such person's ability to operate such vehicle was affected by alcohol to the extent that the public health and safety was threatened or that said person had violated a state statute or local ordinance in the operation of a motor vehicle. Emphasis added.

Defendant contends that under § 756(b), the government must show that defendant's actual operation of his vehicle was demonstrably impaired to the extent that the public health and safety were threatened. Since the arresting officer did not observe defendant's van until after it had come to a complete stop, defendant contends the government has failed to present evidence that defendant's actual operation of his vehicle was demonstrably impaired. Defendant therefore concludes that he cannot be found guilty of driving while impaired.

The government responds that § 756(b) does not restrict evidence of impairment solely to proof of defendant's actual operation of his vehicle. The government contends the focus of evidence under § 756(b) is whether defendant's ability to operate his vehicle has been impaired by alcohol to the extent as to constitute a threat to the public health and safety. The government further contends that public policy favors its interpretation of the statute. To restrict evidence of impairment solely to proof of defendant's actual operation of his vehicle, the government argues, would endanger the public health and safety by exposing the public to unnecessary risks.

At the Court's request, the parties have submitted briefs concerning the interpretation of § 756(b). Upon examination of the parties' briefs and the cases cited therein, it appears that this narrow issue of Oklahoma law has not previously been decided. Therefore, the Court will interpret the statute in the manner it believes would be in accord with the state courts of Oklahoma.

A comparison of § 756(b) with the provisions of § 756(a) and (c) is helpful in determining the meaning of the phrase "ability to operate" a vehicle. At one extreme, § 756(a) provides that proof of 0.05 or less blood alcohol content is prima facie evidence that the driver is not under the influence of alcohol. Thus, Oklahoma recognizes that the average person can consume a relatively small amount of alcohol without impairing his or her ability to drive. Of course,...