ORDER AFFIRMING APPELLANT'S CONVICTION
After appellant Sean Harrington ("Harrington") was arrested on suspicion of drunken driving in Yosemite National Park, he was read the full California admonition for drunken driving arrestees by the park ranger on jailer duty. The California admonition states that an arrestee is required by state law to submit to a chemical test. The admonition separately warns that refusal to submit to testing will "result in a fine and imprisonment if this arrest results in a conviction of driving under the influence." Under federal law, which applies within the park, an additional fine and/or imprisonment is not contingent upon a conviction for driving under the influence; rather, it is a separate offense. The government dismissed the charge of DUI against Harrington, but Harrington was convicted for refusing to submit to a chemical test, pursuant to 36 C.F.R. § 4.23(c)(2). In entering the conviction, the magistrate judge rejected Harrington's defense of entrapment by estoppel, which was based on the ranger's use of the incorrect admonition. The magistrate concluded that Harrington could not show the necessary element of reliance on an official's faulty information because Harrington's "manner of declination made it quite clear that regardless of what was said to him, he was not going to submit to a blood test." Doc. 17 at 6:15-17.
The question on appeal is whether Harrington, contrary to the magistrate's ruling, presented sufficient evidence at trial to prove the affirmative defense of entrapment by estoppel. Harrington's counsel also argues that Harrington's conviction should be overturned because of "officer-induced confusion." This is a doctrine of state law and not applicable here. For reasons discussed below, the court AFFIRMS Harrington's conviction.
Claims based on sufficiency of the evidence are ordinarily reviewed de novo. United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). In weighing claims that challenge the sufficiency of the government's evidence "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A defendant has the burden of proving entrapment by estoppel. United States v. Batterjee, 361 F.3d 1210, 1216 (9th Cir. 2004). The defense of entrapment by estoppel in this case would serve as a legal excuse for Harrington's refusal of a chemical test because the defense would not serve to negate any necessary element of the crime. It is presumed, where there is no evident congressional intent to the contrary, that a defendant must prove a defense based on "circumstances of justification, excuse or alleviation" by a preponderance of the evidence . Dixon v. United States, 548 U.S. 1, 8, 17 (2006) (internal quotation marks omitted); see also Ninth Circuit Manual of Model Crim. Jury Instructions §§ 6.5 to 6.7 (2010). Therefore, the court will examine whether any rational trier of fact could have found that the defendant failed to show by a preponderance of the evidence any of the elements of an entrapment by estoppel defense.
Harrington was arrested around 10:30 p.m. on June 10, 2011, by Sean Alan Cave in Yosemite National Park on suspicion of driving under the influence, in violation of 36 C.F.R. § 4.23(a). Harrington was parked in a restricted lot marked by "Do Not Enter" signs when he was approached by Cave, who was employed by the Yosemite National Park Service and on "valley patrol" the night of June 10, 2011. Doc. 23 at 28:22--29:6. Cave found Harrington with an open beer in the car. Id. 39:6-15. Cave testified that Harrington's car smelled of alcohol, that Harrington's eyes appeared glassy, and his speech was slightly slurred. Id. at 37:15--38:3. Based upon these signs, as well as Harrington's unsteady gait and argumentativeness, Cave testified that he believed Harrington was under the influence of alcohol to the degree that would make him unsafe to operate the vehicle. Id. at 42:22--43:11. Cave then arrested Harrington. Id. at 43:13.
Leslie Schwille, a ranger for the National Park Service, was the assigned jailer when Harrington was brought into custody. Id. at 62:21--63:6. She read the California admonition for drunken driving arrestees to Harrington. Id. at 64:1-4. The first point of the admonition states: "You are required by state law to submit to a ... chemical test to determine the alcohol ... content of your blood." Exhibit 2, Appellant's Excerpts of Record. The second point gives the arrestee a choice between a blood test and breath test where he is suspected for being under the influence of alcohol. Id. The third advises the arrestee that his license will be suspended for a year if he refuses to be tested. Id. The fourth point states: "Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence." Id. The fifth point warns the arrestee that he does not have the right to an attorney before deciding whether to be tested, and the sixth point provides that the arrestee must complete the remaining test if he is unable to submit to the first. Id. Harrington declined to take a breath test, and also did not take the blood test after initially agreeing to that test. Doc. 23 at 65:5-15.
Matthew Jacobs, a supervisory park ranger employed by Yosemite National Park, arrived at the jail after Harrington had been brought there. Id. at 80:3--81:3. Jacobs heard Scwhille read the California admonition. Id. at 83:7-10. Jacobs subsequently repeated the fifth provision of the admonition that notified Harrington that he did not have a right to a lawyer before testing. Id. at 119-20, 129-30. Jacobs testified that Harrington interrupted the readings frequently and asked many questions. Id. at 82:16-18. Harrington also asked several times to speak with a lawyer and explained that he had never been in federal custody. Id. at 90:22--92:19. In his testimony, Jacobs stated that the admonition read by him and Schwille was the California admonition, and that Yosemite National Park had adopted California's admonition. Id. at 84:14--85:4.
After being recalled as a witness, Schwille acknowledged the differences between the California admonition that was read to Harrington and the federal law. Id. at 133:19--134:20. Schwille also agreed that the fourth point of the California admonition - that refusal will result in an additional fine and imprisonment if the suspect is convicted on DUI - is incorrect as to the federal law applicable in Yosemite National Park, which holds that refusal can result in a fine and imprisonment regardless of whether the suspect is convicted on DUI. Id. at 134:17-20
Harrington was convicted at trial of violating 36 C.F.R. § 4.23(c)(2). Subsection (c) states:
(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 ...