United States v. King

894 F.Supp.2d 737

UNITED STATES of America, Plaintiff,

v.Thomas Edward KING, Defendant.

Case No. 7:11–PO–316.

United States District Court,

W.D. Virginia,

Roanoke Division.

May 11, 2012.

Thomas T. Cullen, Kartic Padmanbhan, United States Attorneys Office, Roanoke, VA, for Plaintiff.

Anthony Franklin Anderson, Anthony F. Anderson Law Offices, Roanoke, VA, Harry Franklin Bosen, Jr., Harry F. Bosen, Jr., P.C., Salem, VA, for Defendant.

MEMORANDUM OPINION

ROBERT S. BALLOU, United States Magistrate Judge.

Defendant, Thomas Edward King (“King”), is charged with operating a vehicle under the influence of alcohol in violation of 36 C.F.R. § 4.23(a)(1) and (2)¹, refusal to submit to a test to determine blood alcohol content in violation of 36 C.F.R. § 4.23(c)(2), driving without headlights in violation of 36 C.F.R. § 4.2, assimilating Virginia Code § 46.2–1030, and interference with a government employee engaged in an official duty in violation of 36 C.F.R. § 2.32(a)(1). A bench trial was held on April 4, 2012, after which the court took the matter under advisement.

The court has carefully considered the evidence adduced at trial and finds that the government met its burden of proving King guilty of driving without headlights, being under the influence of alcohol to a degree that rendered him incapable of safe operation of his vehicle, and refusing to submit to a breath test. For the reasons stated below, the court finds King GUILTY of violating 36 C.F.R. § 4.2, assimilating Virginia Code § 46.2–1030, 36 C.F.R. § 4.23(a)(1), and 36 C.F.R. § 4.23(c)(2), and NOT GUILTY of violating 36 C.F.R. § 2.32(a)(1). A sentencing hearing will be set.

I.

The threshold issue is whether the investigating ranger instituted his traffic stop on federal or private lands, and thus, whether any wrongful conduct occurred on federal property. The trial testimony and evidence regarding the location of the boundary line for the Blue Ridge Parkway and exactly where the traffic stop occurred is set forth in detail. During the evening hours of September 10, 2011, Ranger James Lyon established a position located on national park property near the intersection of the Blue Ridge Parkway and Overlook Ridge Drive to patrol for deer poachers. Overlook Ridge Drive runs in a generally east/west direction and provides access to a private neighborhood west of the Blue Ridge Parkway. GIS markers identify the national park boundary line, which crosses Overlook Ridge Drive approximately 250 feet west of the Blue Ridge Parkway. Thus, Overlook Ridge Drive lies partially on private lands and partially on national park property.

Two wooden pillars located at or near the national park boundary line, one on either side of Overlook Ridge Drive post “No Trespassing” and “Stop” signs for vehicles heading from the Blue Ridge Parkway onto the private drive. The evidence is in conflict as to whether these pillars are located on national park lands or private property. The government's evidence established that Ranger Lyon has served as a park ranger for four years and is familiar with the location of the boundary line and the GIS markers locating that line. Ranger Lyon testified that the national park boundary line crosses Overlook Ridge Drive approximately two to three feet west of the pillars, such that the pillars are located on national park property. King's evidence, primarily through his wife and photographs introduced into evidence, is that the boundary line crosses east of the pillars, and thus the pillars are located on private property.

Ranger Lyon testified that, on September 10, 2011, he parked his police vehicle on the private portion of Overlook Ridge Drive, in a grassy area a few feet before the national park boundary line. Ranger Lyon crossed onto national park property, and positioned himself along a bush line approximately 10–15 yards from the boundary line to watch for deer poachers on the Blue Ridge Parkway. Around 8:00 p.m., Ranger Lyon observed a slow-moving car with no headlights approaching the Blue Ridge Parkway from the private portion of Overlook Ridge Drive. Ranger Lyon observed the vehicle pass through the pillars and onto national park property, still without using headlights. After the vehicle traveled approximately 10–20 yards onto national park property without headlights, Ranger Lyon stepped from the bushes onto Overlook Ridge Drive and signaled the vehicle to stop.

Ranger Lyon approached the passenger side of the vehicle, and King's wife, Anita King, rolled down the window. Ranger Lyon asked the occupants of the vehicle why they were driving without headlights, and defendant King replied that they were enjoying the moonlight. Ranger Lyon then instructed King to pull his vehicle to a grassy area on the left side of the road. Ranger Lyon returned to his patrol car, and brought it to a position directly behind King's vehicle. Ranger Lyon testified that the initial traffic stop and all investigation occurred on national park property.

King's witnesses presented the following evidence. King drove a blue Toyota RAV vehicle east on Overlook Ridge Drive. King's wife, Anita was in the front passenger seat of the vehicle, and his daughter, Stephanie King Green, was in the rear seat. King intended to travel along Overlook Ridge Drive from the private neighborhood, turn south onto the Blue Ridge Parkway, and travel approximately 1/4 mile to his home just off the Parkway. King turned off his headlights while driving on the private portion of Overlook Ridge Drive, to enjoy the moonlight. King and his passengers saw Ranger Lyon's police vehicle parked on the left-hand side of Overlook Ridge Drive just before the national park boundary. King stopped his vehicle on the private portion of the road, approximately five feet before the pillars although no traffic signs directed that he do so. At that time, Ranger Lyon walked from his concealed position on the national park property onto Overlook Ridge Drive through the pillars, and approached the passenger side of King's vehicle. King claims that Ranger Lyon told him to turn on his headlights, pull through the pillars onto Blue Ridge Parkway property, and park in a grassy area to the left of the road. King complied. Ranger Lyon then returned to his vehicle and brought it to a position directly behind King's vehicle and on national park lands. King's evidence places the initial stop by Ranger Lyon on private property.

The evidence regarding the remainder of Ranger Lyon's investigation is not in dispute. Ranger Lyon smelled a strong odor of alcohol when he approached King's vehicle. Ranger Lyon observed that King's eyes were watery and bloodshot. Ranger Lyon asked King to step out of the vehicle to determine if the odor of alcohol was emitting from King's person or from his vehicle. King complied. Ranger Lyon smelled a strong odor of alcohol on King's breath, and asked King if he consumed any alcohol that evening. King replied that he had 3–4 beers while kayaking earlier in the day.

Ranger Lyon administered a series of field sobriety tests. The position of Ranger Lyon's vehicle allowed the video taping of a portion of the field sobriety tests. First Ranger Lyon administered the horizontal gaze nystagmus test. Ranger Lyon testified that six out of a total six possible clues were indicated. The test revealed a lack of smooth pursuit in both eyes, nystagmus (rapid eye movement) at maximum deviation in both eyes, and nystagmus prior to 45 degrees in both eyes. Ranger Lyon testified that, based on his training and experience, this test confirmed that there was a probability that King had been consuming alcohol.

Ranger Lyon administered the walk-and-turn test, instructing King to take nine steps heel-to-toe, turn, and take nine steps heel-to-toe back, while keeping his arms at his side. The videotape showed that King lost his balance while Ranger Lyon gave the instructions. King also did not complete the turn correctly. The road was a hard-packed dirt surface with no lines. Ranger Lyon admitted that in training he was instructed to provide a straight line for the subject to walk, but did not draw such a line for King. Ranger Lyon instead used his flashlight to indicate the direction in which King should walk. King exhibited two of a possible eight clues of a person who has consumed alcohol.

King next performed the one-leg stand test. Ranger Lyon instructed King to stand on one foot and raise the other foot off of the ground for thirty seconds. Ranger Lyon testified that four out of four possible clues were indicated. King put his foot down on counts 20 and 23, raised his arm more than six inches from his body, swayed, and hopped on one leg to maintain balance. The videotape confirmed King's unsteady state during this test.

Following the administration of the field sobriety tests, Ranger Lyon requested that King submit to a portable breath test (PBT). The interaction while King attempted to take the PBT was not recorded. The testimony established that King agreed to take the PBT, and Ranger Lyon instructed him to take a deep breath in and blow out a steady stream of air into the portable breathalyzer unit until instructed to stop. Ranger Lyon administered the test twelve times before getting an acceptable sample. King was uncooperative in Ranger Lyon's attempts to administer the PBT. King clinched his teeth on the straw, put his tongue in the straw, blew air out of the sides of his mouth, and hyperventilated before blowing into the machine. Ranger Lyon instructed King not to engage in those types of behaviors, and eventually captured a preliminary breath sample by using the override button on the machine. The PBT reading was positive, indicating that King had alcohol in his system. Ranger Lyon arrested King for driving under the influence at 8:45 p.m.

Anita King leaned out of the car window and yelled during the administration of the field sobriety tests and the PBT. Anita King implored her husband...