US v. Farmer

• Decision Date: 25 January 1993
• Docket Number: CR. No. 92-00047-A-01.
• Citation: 820 F. Supp. 259
• Parties: UNITED STATES of America, Appellee, v. Leigh A. FARMER, Appellant.
• Court: U.S. District Court — Western District of Virginia

820 F. Supp. 259

UNITED STATES of America, Appellee, v. Leigh A. FARMER, Appellant.

CR. No. 92-00047-A-01.

United States District Court, W.D. Virginia, Abingdon Division.

January 25, 1993.

Julie M. Campbell, Asst. U.S. Atty., Abingdon, VA, for appellee.

R. Wayne Austin, Abingdon, VA, for appellant.

MEMORANDUM OPINION

GLEN M. WILLIAMS, Senior District Judge.

This criminal case is currently before the Court on the appeal of Appellant, Leigh A. Farmer ("Farmer"), from the United States Magistrate Judge. Farmer appeals the decision of the United States Magistrate Judge on August 25, 1992, of the above referenced violations which found her guilty of driving under the influence in violation of 36 C.F.R. § 4.23(a) (1992) and reckless driving in violation of 36 C.F.R. § 4.2 (1992) (incorporating Va.Code Ann. § 46.2-852 (1989 & Supp. 1992)) on federal property. On the reckless driving charge, the United States Magistrate Judge imposed a fine of one hundred dollars ($100.00) and a special assessment fee of ten dollars ($10.00). On the driving under the influence charge, the United States Magistrate Judge imposed a fine of four hundred dollars ($400.00), a ten dollar special assessment fee ($10.00), a thirty day suspended jail sentence, one year unsupervised probation, a condition of probation being the successful completion of the Virginia Alcohol Safety Action Program, and suspension of driving privileges on the Blue Ridge Parkway for one year. Farmer seeks reversal of her conviction, arguing that her conviction violated the double jeopardy bar and, further, that the trial court erroneously admitted into evidence or alternately gave undeserved weight to the results of Farmer's blood alcohol test. Farmer objects that required procedures under Virginia law for the withdrawal of blood were not followed and that the Certificate of Analysis is hearsay and without adequate foundation. The following is a summary of facts relevant to the Court's decision.

FACTS

The evidence established that on July 25, 1992, at approximately 5:45 p.m., Appellant, Leigh A. Farmer, travelling north on the Blue Ridge Parkway, a federally administered highway, drifted into the southbound lane and was involved in an automobile collision with Glenda McCormick ("McCormick"), travelling south bound, at milepost 187 in Carroll County, Virginia. Billy Gene McCraw, Park Ranger for the Department of the Interior ("Ranger McCraw"), arrived on the scene of the collision at approximately 6:00 p.m. and, in the course of his investigative duties witnessed the McCormick vehicle, a Ford Crown Victoria, resting partially in the southbound lane and primarily on the shoulder of the road. Ranger McCraw observed Farmer's car, a Chevrolet Blazer, resting at an angle blocking the southbound lane. He observed skid marks left by the McCormick vehicle in the south bound lane, but no discernible skid marks left by Farmer's vehicle in the north bound lane. He did observe sideways "gauge marks" in the south bound lane left by Farmer's vehicle after it impacted with the McCormick vehicle. Ranger McCraw made photographs and a drawing of the accident scene, which items were introduced at Farmer's trial, but no measurements were taken.

Upon talking to Farmer at the accident scene, Ranger McCraw detected that her speech was somewhat slurred, her eyes bloodshot and glassy. He also observed a strong odor of alcohol about her person. Farmer indicated to Ranger McCraw that she was the operator of the Chevrolet Blazer. Ranger McCraw found no other passengers in Farmer's vehicle, although Farmer claimed that she had not been the only occupant of the Blazer. The conversation between Ranger McCraw and Farmer occurred at the scene of the accident while Farmer was strapped onto a back board. No blood alcohol tests were given to Farmer at the scene. Ranger McCraw did not specifically observe any injuries on Farmer, but he observed ambulance personnel begin an intravenous infusion into Farmer.

Ranger McCraw's second contact with Farmer occurred in the emergency room of Northern Surrey Hospital within one hour of the accident. Ranger McCraw admitted that he could not state whether Farmer did or did not receive any medication while she was out of his presence. However, other than the intravenous solution which Ranger McCraw observed, and which would not affect the results of Farmer's blood test, there is no evidence that Farmer received medication prior to withdrawal of her blood sample.

While at the hospital, Farmer indicated to Ranger McCraw that she did not remember the details of the accident. She also admitted that at the time of the accident she had been returning from a jazz festival/wine tasting at the Doe Run Lodge two miles south of the accident scene. She stated that she and a friend had sampled four to six glasses of wine and had consumed a bottle of wine.

At the hospital, Farmer signed a written consent to a blood alcohol test. A registered nurse drew the blood sample in the presence of Ranger McCraw. The nurse prepared Farmer's arm with an iodine solution. The nurse collected Farmer's blood in a single vial. Ranger McCraw never discussed with Farmer the possibility of having a separate sample of blood taken. Ranger McCraw marked the vial with Farmer's name and social security number, the date, Ranger McCraw's initials, and the nurse's initials. He sealed the vial with evidence tape and placed it into a protective container for shipping. He sealed the container itself with only standard scotch tape. Ranger McCraw sent the sample by certified mail, return receipt requested, in a padded envelope to the Division of Forensic Science in Richmond, Virginia for analysis. Ranger McCraw did not submit a certificate of withdrawal with the sample, and stated at the trial that he was unaware at the time that regulations required him to do so. He did make a testing request, but no copy of the testing request was made available to the Court.

Despite a written request by Ranger McCraw that the lab send results directly to him, the lab sent the Certificate of Analysis to the General District Court for Floyd County, Virginia. The Certificate indicates on its face that it was received by the General District Court on August 24, 1992, the day before the Magistrate Judge's trial. Ranger McCraw received a faxed copy of the results from Richmond on the same day. The original lab analysis was not received from the General District Court until August 25, 1992, the day of the trial. The vial was not returned.

The Certificate of Analysis received into evidence by the Court over Farmer's objection, indicated that Farmer's blood alcohol content was 0.14% by weight by volume. The Certificate of Analysis also stated on its face that no certificate of blood withdrawal was submitted and also noted that the container was "not sealed."

DISCUSSION

I. Driving Under the Influence While on Federal Property

A. Where Offense Specifically Provided for in Federal Regulations, Virginia Statutory Procedures are Inapplicable.

The charge of driving under the influence in the present case was made solely under the Code of Federal Regulations. 36 C.F.R. § 4.23(a) (1992).¹ A threshold matter in any prosecution brought under this section is whether the conduct in question occurred on a federal enclave. As the Magistrate Judge recognized, this threshold showing was sufficiently established. The accident in this case between the Farmer and McCormick vehicles occurred on the Blue Ridge Parkway, a federally administered highway. Having established that Farmer drove her car on a federal enclave, this Court must decide whether the Magistrate Judge correctly found that Farmer was driving on the federal enclave while under the influence of alcohol.

Farmer's attack on the Magistrate Judge's decision rests on the admission into evidence of Government Exhibit Six (6), the Certificate of Analysis. First, Farmer objects to the admission of the certificate both as hearsay and because a proper foundation was not laid. Specifically, Farmer Argues that Virginia law requires that any certificate of analysis be filed at least seven (7) days prior to a hearing before the court. In the present case, the Certificate was received by the General District Court on August 24, 1992, the day before the Magistrate Judge's trial.

Secondly, Farmer argues that the following Virginia law requirements for the withdrawal of blood were not met in the present case and, therefore, that an adequate foundation for admission of the Certificate was not made: (1) that the requisite certificate of withdrawal was not made; (2) that the container submitted to the laboratory was not properly sealed;² and, (3) that medication may have been administered to Farmer which could have affected the results of her blood alcohol test.

Farmer contends that Virginia statutory procedures and criteria for withdrawal of blood bind this Court. See Va.Code Ann. 46.2-341.26 (1989 & Supp.1992). Relying on Section 4.2 of the Code of Federal Regulations, Farmer argues that the procedures for the manner in which the blood is to be withdrawn must be governed by state law, because the Regulations do not specifically address the required procedures. The Code of Federal Regulations provides that "unless specifically addressed by regulations in this chapter, traffic and the use of vehicles within a park area are governed by State law." 36 C.F.R. § 4.2(a) (1992).

This Court finds Appellant's reliance on Section 4.2 misplaced. The "Achilles' heel" of Appellant's argument is the plain meaning of the Regulation's language, "unless specifically addressed by regulations in this chapter." 36 C.F.R. § 4.2(a) (1992); see also United States v. Knott, 722 F.Supp. 1365 (E.D.Va.1989) (providing that Magistrate Judge could not impose suspension of license as punishment for a violation specifically addressed in the Code, and where federal law did not provide for such a punishment)....