The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
This case is before the Court on Defendant's Motion to Dismiss Count Two of the Criminal Complaint against him.
Defendant is represented by the office of the Federal Defender. The Government is represented by the National Park Service Legal Office.
Defendant was arrested in Yosemite National Park on August 5, 2011, based upon reported erratic driving and erratic behavior observed by National Park Service Law Enforcement Rangers. He was charged in a Criminal Complaint filed August 5, 2011, essentially as follows:
Count 1: Driving a vehicle under the influence of drugs and/or alcohol to the extent he was incapable of safe operation of the vehicle, a violation of 36 Code of Federal regulations ("CFR") § 4 .23(a)(1);
Count 2: Refusal to submit to a test to determine blood alcohol and drug content in violation of 36 CFR 4.23 § (c)(2); and,
Count 3: Failure to signal before making a turn in his vehicle in violation of 36 CFR § 4.2, incorporating California Vehicle Code Section 22108. (Crim. Compl, ECF No. 1.)
On August 5, 2011, Defendant was arraigned. He entered a "not guilty" plea to all charges and was released on his on recognizance with special conditions. A bench trial was scheduled but then vacated on the request of the parties to enable the filing and resolution of this motion.
The instant motion was filed in writing on September 29, 2011. (Mot. to Dismiss, ECF No. 7.) The government filed written opposition October 16, 2011. (Opp'n, ECF No. 8.) The Court determined this matter suitable for decision without oral argument, and took the matter under submission.
II. DEFENDANT'S MOTION TO DISMISS
Fed. R. Crim. P. 12(b)(3)(B) allows the Court to hear at any time while a case is pending a claim that the indictment or information fails to invoke the Court's jurisdiction or to state an offense. Defendant asserts that Count 2 of the criminal complaint cannot state an offense because the regulation allegedly violated was superseded by 18 U.S.C. § 3118.
As noted, Count 2 of the criminal complaint alleges that Defendant violated 36 C.F.R. § 4.23(c)(2) by refusing to submit to a test for the purpose of determining blood alcohol and drug content. Defendant argues that this National Park Service regulation, conviction of which carries with it up to six months imprisonment and a $5000.00 fine, is superseded by 18 U.S.C. § 3118 which provides administrative and evidentiary penalties for refusing such a test.
Specifically, 18 U.S.C. § 3118(a) provides that whoever operates a motor vehicle in the special territorial jurisdiction of the United States consents to a chemical test of his blood, breath, or urine, if arrested for any offense arising from his driving while under the influence of ...