US v. Rogers, 96-1279M.

Citation926 F. Supp. 1000
Decision Date05 June 1996
Docket NumberNo. 96-1279M.,96-1279M.
PartiesUNITED STATES of America, Plaintiff, v. Franklin L. ROGERS, Defendant.
CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado

Timothy W. Pleasant, Colorado Springs, CO, for Defendant.

Christopher Hair, Special Asst. U.S. Atty., for U.S.

MEMORANDUM OPINION AND ORDER

BORCHERS, United States Magistrate Judge.

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.

I.

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 Defendant refused to take any test, and his right to drive at Fort Carson subsequently was revoked.

II.

Defendant is charged with a violation of Colo.Rev.Stat. § 42-4-1301(1)(a) (driving under the influence), 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:

(a) Consent. — Whoever operates a motor vehicle in the special maritime or 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 the 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. Any person who operates a motor vehicle in the special maritime and territorial jurisdiction of the United States after having been denied such privilege under this subsection shall be treated for the purposes of any civil or criminal proceedings arising out of such operation as operating such vehicle without a license to do so.

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...

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6 cases
  • U.S. v. Sauls
    • United States
    • U.S. District Court — District of Maryland
    • 8 Octubre 1997
    ...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......
  • Bollenbacher v. Helena Chemical Co.
    • United States
    • U.S. District Court — Northern District of Indiana
    • 24 Junio 1996
  • U.S. v. Williams
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 2 Junio 2009
    ...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......
  • U.S. v. Swift Hawk, CR 00-30061.
    • United States
    • U.S. District Court — District of South Dakota
    • 11 Diciembre 2000
    ...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......
  • Request a trial to view additional results

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