The opinion of the court was delivered by: Breyer, District Judge.
This case comes on appeal by defendant Brian Christopher Volk from a
conviction for driving under the influence of alcohol entered by
Magistrate Judge Maria Elena James following a bench trial on September
16, 1998. For the reasons set forth below, the conviction is affirmed.
The following evidence was presented at trial:
After determining that the defendant's license was valid and that there
were no outstanding warrants for his arrest, Officer West asked the
defendant to step out of the jeep so that he could administer a series of
field sobriety tests ("FSTs"). He first performed the "Nystagmus test,"
which involves measuring the movement and tracking ability of the eyes.
Although the United States did not offer the results of the Nystagmus
test at trial, Officer West did observe at this juncture that the
defendant's eyes were bloodshot and glassy, and that he swayed from side
Officer West then administered the "walk and turn test" on the
defendant. He instructed the defendant to keep his hands at his sides and
place his left foot in front of his right foot, heel to toe, continuing
for nine steps while counting out loud. At step nine, he instructed the
defendant to pivot on his front foot and take little steps to turn around
and continue in the opposite direction for nine steps. According to
Officer West, defendant failed to follow all the instructions when taking
this test, because he made an "immediate," "military" about-face rather
than taking small steps and pivoting. Officer West also felt that the
defendant failed to follow instructions because he failed to touch
heel-to-toe on step eight of the nine return steps.
Next, Officer West administered the "one-leg stand test." He instructed
the defendant to stand with his feet together and his hands at his side,
raise either foot approximately six inches off the ground, look at the
toe of the raised foot, and count to thirty. He told the defendant that
if the raised foot dropped during the test, he was to raise the foot
again, and continue to count. Officer West observed that the defendant
swayed from side to side and hopped up and down on the planted foot when
he performed this test.
The officer then instructed the defendant to write the letters of the
alphabet, A through Z, on a piece of paper. He observed that the letters
were "somewhat jumbled" and that the defendant appeared to make some
mistakes at the middle portion and at the end. A copy of this test was
admitted at trial.
Officer West next instructed the defendant to perform the "finger-count
test," which involved taking the thumb of one hand and touching each
finger on that hand in succession while counting out loud (one, two,
three, four) and then backwards (four, three, two, one). Officer West
observed that the defendant "continually missed the fourth finger" when
he counted backwards and "stumbled over" the number two when pointing to
his middle finger.
The final field test conducted by Officer West was the preliminary
alcohol screen test ("PAS"), in which the defendant was required to blow
into a small device that would provide a reading of the defendant's
estimated blood alcohol content. Although the government did not
introduce the specific results of the PAS at trial, Officer West did
testify that the reading confirmed what he had detected when he first
made the traffic stop — that defendant had consumed alcohol.
Further, while he administered this test, Officer West again detected the
odor of alcohol on the defendant's breath.
After administering these tests, Officer West arrested the defendant
for possibly driving under the influence of alcohol. He testified that he
made the decision to arrest the defendant based upon "the sum of all the
tests taken together," combined with his personal observations of the
Incident to the arrest, Officer West searched the defendant's jeep and
discovered a plastic Starbuck's coffee cup with a straw containing a
liquid that had the appearance and odor of beer. In addition, he
recovered an empty bottle of beer from underneath the driver's seat and
two empty bottles of malt liquor from behind the driver's seat.
Officer West then transported the defendant to the U.S. Park Police
Presidio field office for processing and to administer tests on an
alcohol measuring device known as the Intoxilyzer 5000. Defendant
registered alcohol levels of .193 and .190 in the two tests conducted by
Officer West — more than two times the legal limit of .08.
The government charged defendant with one count of driving under the
influence of alcohol in violation of 36 C.F.R. § 4.23 (a)(1) and one
count of driving with a blood alcohol level in excess of .08% in
violation of 36 C.F.R. § 4.23 (a)(2). The trial court found defendant
guilty of both counts, holding that the evidence of the Intoxilyzer test
results combined with Officer West's observations demonstrated beyond a
reasonable doubt that he had committed the offenses.
Defendant challenges his conviction on three grounds. First, he argues
that the trial court did not have subject matter jurisdiction over the
case, because the government, failed to provide sufficient evidence that
the above-described events took place on federal land. Second, defendant
argues that the trial court erred by failing to hold an evidentiary
hearing on the reliability of the field tests administered by Officer
West before allowing testimony on these tests during the bench trial.
Finally, defendant argues that the results of the Intoxilyzer ...