A Tangled Web - Drunk Driving On Federal Property In Maryland

by Leonard R. Stamm

The State of Maryland is chock full of federal enclaves such as Fort Meade, the Baltimore-Washington Parkway, the Beltsville Agricultural Research Center, and Andrews Air Force Base, to name a few. Last October, United States Magistrate Paul Rosenberg published his opinion in United States v. Sauls, 981 F.Supp. 909 (D.Md. 1997), a case argued by MCDAA member Christine Saverda Nielsen, concerning a drunk driving prosecution at the Aberdeen Proving Grounds. Although the opinion was not a victory for Sauls,1 in the tradition of cases such as Casper v. State, 70 Md.App. 576, 521 A.2d 1281 (1987) State v. Werkheiser, 299 Md. 529, 474 A.2d 898(1984) it may turn out to be a case that is helpful to other defendants.

First we digress. Federal property is either subject to exclusive or concurrent federal criminal jurisdiction. Property acquired by the federal government between 1906 and 1940, such as the Beltsville Agricultural Research Center or Fort Meade is subject to exclusive federal jurisdiction. See Dreos v. United States, 156 F.Supp. 200, 205 n.3 (1957); 56 Op. Atty. Gen. 347 (1971). Other properties, such as the Baltimore-Washington Parkway, are under concurrent state and federal jurisdiction. Id.

18 U.S.C. § 13, the Assimilative Crimes Act, incorporates the substance and punishment, but not procedural aspects, of state law crimes on federal enclaves, and makes such crimes federal offenses, where the Congress or federal agencies have not legislated on the subject matter of the state law. The Assimilative Crimes Act transforms a violation of state law into an offense against the federal government. United States v. Press Publishing Co., 219 U.S. 1 (1911); United States v. Holley, 444 F.Supp. 1361, 1362 (D.Md. 1977). It is "a shorthand method of providing a set of criminal laws on federal reservations, by using local law to fill the gaps in federal criminal law." United States v. Prejean, 494 F.2d 495, 496 (5th Cir. 1974).

Since the offenses created by the Assimilative Crimes Act are federal crimes, it is for the federal courts to define the offenses, and state court opinions are merely persuasive authority which are not binding on the federal court. Federal cases have thus stated:

Title 18 § 13 was enacted to incorporate State criminal statutes into the Federal law. Interpretations of this Federal law is for the Federal Courts, and they are not bound by the constructions of the State Courts (Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814; and Kay v. United States, 4 Cir., 255 F.2d 476). Of course State decisions naturally have great potential persuasive power with this court, but this Court is not bound to follow such decisions if in its judgment they are wrong.

United States v. Barnes, 195 F.Supp 103, 105 (N.D.Cal. 1961). Additionally, the Assimilative Crimes Act only incorporates the punishments contained in the state law, not civil or administrative sanctions which are not deemed to be punishment. United States v. Best, 573 F.2d 1095 (9th Cir. 1978) (license suspension which could have been ordered by California court under California law was not "punishment" and federal court could not order DMV to suspend driver's license); see, State v. Jones, 340 Md. 235, 666 A.2d 128 (1995), cert. den., ---U.S.---, 116 S.Ct. 1265, 134 L.Ed.2d 213 (1996)(Maryland administrative license suspension is not "punishment").

Federal properties that are under the jurisdiction of the National Park Service, such as Cabin John Parkway, the Suitland Parkway, and the Baltimore-Washington Parkway, are covered by federal traffic regulations contained in 36 Code of Federal Regulations (CFR). In those locations, since there are regulations on the subject matter of drunk driving, the Assimilative Crimes Act does not apply. Instead, driving under the influence of alcohol as well as refusal to take a test is prohibited by 36 CFR § 4.23.

By way of contrast, in those areas, such as Fort Meade or Andrews Air Force Base, where neither Congress, nor any of the federal agencies have made driving while intoxicated a criminal offense, the Assimilative Crimes Act applies and adopts as federal law, the terms and punishment provided by Transportation Article, § 21-902. See United States v. Walker, 552 F.2d 566, 568 (4th Cir. 1977); United States v. Channel, 423 F.Supp. 1017 (D.Md. 1976). The implied consent provisions of § 16-205.1 and procedural requirements of Cts. & Jud. Proc. Art., § 10-301-10-309 are inapplicable. Instead, the federal implied consent provision, 18 U.S.C. § 3118, which provides for suspension of driving privileges for one year on federal territories, and the Federal Rules of Evidence apply on these enclaves. Unlike Maryland, there is no right of refusal under federal law, the toxicologist need not approve equipment used in testing, and breath test technicians need not follow the Toxicologist's Regulations. Additionally, Transp. Art., § 16-402 et. seq., addressing the assessment of points, does not provide for assessment of points for federal drunk driving convictions.

Despite these differences, in practice, the Military Police at Andrews and Fort Meade, for example, use the Motor Vehicle Administration (MVA) Form DR-15 to advise arrestees of the state penalties that shall be imposed for failing or refusing the test. The MVA acts as if the failure or refusal is sanctionable, and the MVA assesses points for convictions under the Assimilative Crimes Act that carry the state description and imposes suspensions for convictions as if the conviction was for the state law violation.

It is the attack on these objectionable practices that will be aided by the Sauls opinion. Sauls was arrested at the Aberdeen Proving Grounds and was advised, pursuant to the DR-15 Form, that his license would be suspended as provided in Transp. Art., § 16-205.1 if he failed or refused the test. He took the test and failed it, and argued that it should be excluded as having been coerced by misleading advice since Maryland implied consent law does not apply on the federal reservation. The Court agreed that the Maryland implied consent law did not apply, but held that the giving of the advice was harmless because on federal property, unlike within Maryland, there is no right of refusal.

In a footnote, the Court stated:

[T]he Court is aware that the State routinely suspends an individual's license or privilege to drive under Trans. II, § 16-205.1 for events occurring at Aberdeen Proving Ground, Maryland. The Court is of the opinion that there is substantial merit to the defendant's argument that Maryland does not have the authority to apply its suspension procedures for events occurring on property in which jurisdiction is exclusively federal, at least without legislative authority. The Court assumes that the validity of the State's action is an issue that ultimately will be decided administratively by the Maryland Motor Vehicle Administration and/or by the Courts of the State of Maryland. The Court also notes that points are routinely assessed for traffic offenses occurring at Aberdeen Proving Ground, Maryland, charged under the Assimilative Crimes Act, by the Maryland Motor Vehicle Administration under Maryland's point assessment statute, Trans. II, § 16-402. The validity of this action may also be questionable. On the other hand, the state legislature has authorized the Motor Vehicle Administration for the State to suspend an individual's driving privilege for either failing to appear or failing to pay a fine in connection with a traffic offense which is the subject of a proceeding before the United States District Court for the District of Maryland. See, Trans. II, § 26-206 and § 27-103.

Sauls, 981 F.Supp. at 914, n.2. These comments by the Court should prove helpful in future federal prosecutions or MVA hearings concerning a refusal obtained after advice of Maryland penalties for refusal, or in MVA hearings resulting from a conviction under the Assimilative Crimes Act.

In its other holdings, the Sauls opinion rejected the defendant's argument that the military breath test technician was required to follow the Toxicologist's Regulations as a prerequisite to test admissibility and rejected the government's argument that the statutory inferences of Cts. & Jud. Proc., § 10-307 should apply to any test result. Instead, the Court crafted its own inferences, which, after a lengthy review of reported decisions and scientific authority, it indicated could be judicial noticed by the trial court.

1. .10 or more--from this level alone it may be inferred that the defendant was both intoxicated and under the influence of alcohol. . . .

2. .08 and above but less than .10--from this level alone it may be inferred that the defendant was under the influence of alcohol, and the beyond a reasonable doubt standard is satisfied. . . .

3. .05 and above but less than .08--from this level alone it may not be inferred that the defendant was either intoxicated or under the influence of alcohol. . . .

4. More than .02 and above but less than .05--at this level it may be inferred that the defendant was unlikely intoxicated or under the influence of alcohol . . . .

5. Any measurable amount of alcohol concentration .02 or below--at this level it may be inferred that the defendant was not intoxicated or under the influence of alcohol . . . ordinarily, it would be appropriate to grant a judgment of acquittal on the intoxication charge at this level.

Sauls, 981 F.Supp. at 925.

In its final holding, the Court held that a test administered within three hours of apprehension should be admissible. Maryland's statutory limit of two hours, contained in Cts. & Jud. Proc. Art., § 10-303, being procedural, is not assimilated by 18 U.S.C. § 13.

Sauls' five holdings are by no means the last word on these issues: (1) that Maryland implied consent provisions are not assimilated under the Assimilative Crimes Act; (2) that the Maryland Post Mortem Examiner's Toxicologist's Regulations need not be followed by federal authorities; (3) that Maryland's statutory inferences are not assimilated under the Assimilative Crimes Act; (4) that federal courts can judicially create and notice their own inferences resulting from breath alcohol tests; and (5) that test results obtained within three hours of apprehension are admissible. However, Sauls fills some hitherto rather large gaps in federal drunk driving case law. Familiarity with Sauls is critical to representation of defendants charged with driving while intoxicated or under the influence of alcohol in federal court.

Notes

1. Ultimately, Sauls did receive a dismissal for unrelated reasons.