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VOLK v. U.S.

May 28, 1999

BRIAN CHRISTOPHER VOLK, APPELLANT
v.
UNITED STATES OF AMERICA, APPELLEE.



The opinion of the court was delivered by: Breyer, District Judge.

  ORDER

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.

BACKGROUND

The following evidence was presented at trial:

During the evening of June 8, 1996, Officer Ronald West of the U.S. Park Police observed a jeep driven by the defendant traveling at a high rate of speed on Funston Boulevard in the Presidio of San Francisco. The defendant failed to stop at a posted stop sign at the northeast corner of Funston and Lincoln Boulevards, and turned northward onto Lincoln Boulevard. Officer West stopped the defendant and requested his driver's license and registration, at which point he could detect the odor of alcoholic beverages emanating from the defendant's breath and from inside the jeep. When he asked the defendant whether he had been drinking, the defendant responded, "Absolutely not. Say, partner, could you tell me how to find Union Street?"

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 to 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 defendant.

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 ...


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