US v. Rogers, 96-1279M.
Decision Date | 05 June 1996 |
Docket Number | No. 96-1279M.,96-1279M. |
Citation | 926 F. Supp. 1000 |
Parties | UNITED STATES of America, Plaintiff, v. Franklin L. ROGERS, Defendant. |
Court | U.S. District Court — District of Colorado |
Timothy W. Pleasant, Colorado Springs, CO, for Defendant.
Christopher Hair, Special Asst. U.S. Atty., for U.S.
THIS MATTER came before the Court on May 29, 1996 for hearing on Defendant's motion to dismiss. The Court heard argument from counsel, but no testimonial evidence was presented by either side. Only the issue of double jeopardy will be discussed in this memorandum opinion. Other issues will be resolved in a separate order. Further argument will be waived.
Though no testimony was presented by the parties, the following facts are found from the police report and other documents submitted by the parties. On October 22, 1995 at approximately 1:30 a.m., Plaintiff was driving a motor vehicle and attempted to enter onto Fort Carson, a military reservation located south of Colorado Springs, Colorado.
All vehicles entering onto Fort Carson were being stopped and inspected, pursuant to a command directive. Plaintiff approached a traffic control point and was confronted by Gerald P. Leray, a military police officer. MP Leray advised Defendant that his vehicle was to be inspected and that he should ready all appropriate documentation.
Plaintiff pulled into the inspection area. MP Leray indicated that he smelled the odor of alcohol coming from Defendant and so advised his colleagues. Defendant was asked to exit his vehicle. The vehicle was searched. Defendant then was asked to take a field sobriety test. According to MP Leray's report, Defendant initially agreed to take a field sobriety test. Defendant was asked to take a portable breathalyzer test but refused. Plaintiff was arrested shortly thereafter and taken to the Provost Marshal's Office.
Defendant was asked to take a chemical test pursuant to 18 U.S.C. § 3118. Defendant refused to take any test, and his right to drive at Fort Carson subsequently was revoked.
Defendant is charged with a violation of Colo.Rev.Stat. § 42-4-1301(1)(a) ( ), as assimilated under 18 U.S.C. § 13. Defendant has moved for dismissal of the charge against him, arguing that he has been punished already by loss of his driving privileges at Fort Carson. He argues that prosecution on the charge would constitute a violation of the Double Jeopardy Clause. This Court disagrees.
Defendant was stopped on federal property and ultimately arrested for driving under the influence. Defendant was thus subject to the provisions of 18 U.S.C. § 3118, which read as follows:
This section is the federal implied consent law that is applicable to all federal property. United States v. Love, 141 F.R.D. 315 (D.Colo.1992). This section supersedes any...
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...the procedure established by 18 U.S.C. § 3118. United States v. Roberts, 845 F.2d 226, 228-229 (9th Cir.1988), United States v. Rogers, 926 F.Supp. 1000 (D.Colo.1996), United States v. Hopp, 943 F.Supp. 1313 (D.Colo. Transportation § 16.205.1 in pertinent part provides: (a)(2) Any person wh......
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...for one year "commenc[es] on the date of arrest upon which such test or tests was refused." 18 U.S.C. § 3118. Cf. United States v. Rogers, 926 F.Supp. 1000, 1001 (D.Colo.1996) ("Defendant was asked to take a chemical test pursuant to 18 U.S.C. § 3118. Defendant refused to take any test, and......
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U.S. v. Swift Hawk, CR 00-30061.
...be tested. Trial courts have gone both ways on that question. See U.S. v. Sauls, 981 F.Supp. 909 (D.Md., 1997), and United States v. Rogers, 926 F.Supp. 1000 (D.Colo.1996). Again, the statute is not clearly written. 18 U.S.C. § 3118(a) certainly reads to the effect that the driver has conse......