United States v. Sugiyama

113 F.Supp.3d 784

UNITED STATES of America

v.Lucy A. SUGIYAMA, Defendant.

No. 15–po–5065.

United States District Court, D. Maryland.

Signed July 6, 2015.

Hollis Raphael Weisman, Jane F. Nathan, Office of the U.S. Attorney, Greenbelt, MD, for United States of America.

Lucy A. Sugiyama, Columbia, MD, pro se.

Leonard R. Stamm, Goldstein and Stamm PA, Greenbelt, MD, for Defendant.

MEMORANDUM OPINION AND ORDER OF COURT

THOMAS M. DiGIROLAMO, United States Magistrate Judge.

This matter is before the Court on Defendant's Motion to Dismiss Criminal Refusal Count (the "Motion") (ECF No. 11), which the Government opposed (ECF No. 12). No hearing is required. L.R. 105.6. Defendant's Motion is DENIED, for the reasons set forth below.

BACKGROUND

The following factual summary is derived from the Government's Response to Defendant's Motion. ECF No. 12. At about 5:00 p.m. on March 26, 2015, Officer Cameron Easter of the United States Park Police observed Defendant's vehicle crash off the Baltimore–Washington Parkway, which is in the special maritime and territorial jurisdiction of the United States. Upon assisting Defendant, Officer Easter observed that Defendant appeared disoriented, so the officer called for paramedics, who transported Defendant to the hospital. At the hospital, Officer Matthew Manning arrived and conducted standardized field sobriety tests on Defendant. A roadside breath test was negative for alcohol. On the basis of Defendant's performance on the field sobriety tests, the officers' observations, and the opinion of the examining physician, the officers believed that Defendant was under the influence of drugs. Defendant was thus read the provisions of the "36 CFR Chemical Testing Notice"¹ and was asked if she would submit to a blood draw. Defendant refused, so Officer Easter obtained a telephonic oral warrant under Fed.R.Crim.P. 41(d)(3). Defendant ultimately was charged with, among other offenses, driving under the influence of alcohol and with a blood alcohol concentration of .08 or higher, and refusing to submit to a chemical test in violation of 36 C.F.R. § 4.23(a)(1), (a)(2), and (c)(2).

DISCUSSION

Defendant argues that the charge of refusing to submit to a chemical test must be dismissed because the refusal statute (36 C.F.R. § 4.23(c)(2) ) is unconstitutional under the Fourth Amendment. "[I]t violates the Fourth Amendment to criminalize a refusal to consent to a search." Def.'s Mot. 1, ECF No. 11.

The Court addressed a similar argument raised by the defendant in United States v. Jones, No. 8:14–po–8559–TMD (D.Md. June 25, 2015). As in Jones, the provisions of 36 C.F.R. § 4.23 and 18 U.S.C. § 3118 apply to this case. Title 36 C.F.R. § 4.23 provides:

(a) Operating or being in actual physical control of a motor vehicle is prohibited while:

(1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or

(2) The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph.

(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.

(c) Tests.

(1) At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood alcohol and drug content.

(2) Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissable [sic] in any related judicial proceeding.

(3) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.

(4) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.

(d) Presumptive levels.

(1) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph (a)(1) of this section. If the alcohol concentration in the operator's blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (a)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol.

(2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof.

36 C.F.R. § 4.23 (emphasis added). Section 4.23(c)(2) is a substantive offense. United States v. Francisco, 413 Fed.Appx. 216, 219 (11th Cir.2011) (per curiam) (citing United States v. Brown, 364 F.3d 1266, 1268–69 (11th Cir.2004) ). Indeed, a person can be charged under § 4.23(c)(2) with refusal and face a penalty of up to 6 months' incarceration and/or a fine of up to $5,000.00. 18 U.S.C. §§ 19, 3559(a)(7), 3571(b)(6) ; 36 C.F.R. § 1.3(a).

Title 18 U.S.C. § 3118 provides:

(a) Consent.—Whoever operates a motor vehicle in the special maritime and 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 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.

18 U.S.C. § 3118 (emphasis added).

Although Defendant's charge of test refusal under § 4.23(c)(2) is based on her refusal to submit to a blood test rather than to a breath test, Defendant contends that, "[s]ince a breath test cannot be compelled in the absence of a warrant, the refusal to submit to a breath test, a search, cannot be made criminal." Def.'s Mot. 2, ECF No. 11.

The argument the defendant makes today is that since the Government cannot establish that breath tests fit within an exception to the warrant requirement, that therefore the Government cannot compel submission to a breath test without a warrant, and as a result, that it cannot criminalize the refusal of a defendant to consent to ... this form of search.

Id. at 13. In so arguing, Defendant maintains that the reasoning of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), "must apply to breath tests." Id. at 4.

Defendant's reliance on McNeely is misplaced, however. The Supreme Court in McNeely held that, "in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." McNeely, 133 S.Ct. at 1568 (emphasis added). Rather, the Court "looks to the totality of the circumstances" in evaluating exigency. Id. at 1559. McNeely actually runs contrary to Defendant's argument because the Court stated its support for penalties against chemical test refusal. In the Fifth Amendment context, the Court noted that most States allow a motorist's refusal to be used as evidence against him in a subsequent criminal prosecution. Id. at 1566 (plurality opinion) (citing, inter alia, South Dakota v. Neville, 459 U.S. 553, 554, 563–64, 103 S.Ct. 916, 917–18, 922–23, 74 L.Ed.2d 748 (1983) ). The Court also discussed the "broad range of legal tools" that States have to enforce DUI laws and secure blood alcohol evidence without undertaking warrantless, nonconsensual blood draws. Id. The Court recognized that all 50 States have adopted implied-consent laws, which "require motorists, as a condition of operating a motor vehicle within the State, to consent to [blood alcohol concentration] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense." Id. "Such laws impose significant consequences when a motorist withdraws consent; typically the motorist's driver's license is immediately suspended or revoked...." Id. McNeely, therefore, undermines Defendant's position that the refusal statute violates the Fourth Amendment.

"[U]nless a statute affects a fundamental right or some protected class, courts generally accord the legislation a ...