United States v. Daras ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                       No. 98-4286
    BARRY L. DARAS,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Claude M. Hilton, Chief District Judge.
    (CR-98-79)
    Submitted: September 29, 1998
    Decided: October 16, 1998
    Before ERVIN and WILLIAMS, Circuit Judges, and
    HALL, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Richard E. Gardiner, Fairfax, Virginia, for Appellant. Helen F. Fahey,
    United States Attorney, Jonathan R. Barr, Special Assistant United
    States Attorney, Alexandria, Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Barry Daras appeals from a district court order affirming a magis-
    trate judge's judgment order finding Daras guilty, following a bench
    trial, of driving under the influence of alcohol and with a breath alco-
    hol content of .08 grams or above, in violation of 
    18 U.S.C. § 13
    (1994) (assimilating Virginia Code § 18.2-266), and of speeding, in
    violation of 
    32 C.F.R. § 634.25
    (f) (1998), (assimilating Virginia Code
    § 46.2-870). The infractions occurred on August 24, 1997, around
    2:50 a.m., at Ft. Belvoir, a military installation in Virginia. On that
    date, Military Police Officer Sean Grier observed Daras drive his
    vehicle through a posted 35 mph zone of the military base. Grier used
    a radar detection device to measure Daras' speed at 56 mph, and sub-
    sequently stopped him for speeding.
    When Grier approached Daras, he noticed that Daras' eyes were
    bloodshot and that he appeared to be confused. He smelled the odor
    of alcohol on Daras' breath and noticed an open container of beer in
    the vehicle. Grier testified that Daras had difficulty getting his driv-
    er's license out of his wallet and that his speech was somewhat
    slurred. Daras told Grier that he had "had a few drinks at the club."
    Grier then administered three pre-exit field sobriety tests: the finger
    count, the alphabet test, and the counting test. Daras was unable to
    perform two of the three tests accurately. Grier then asked Daras to
    exit his vehicle. He conducted three post-exit field sobriety tests: the
    walk and turn test, stand on one leg test, and the horizontal gaze nys-
    tagmus test of involuntary eye movement. Grier testified that Daras
    did poorly on these tests and that the results convinced him that Daras
    was under the influence of alcohol. Accordingly, he arrested Daras
    and took him to the military police station, where he used a breatha-
    lyser machine called the "Intoxilyzer 5000" to take a sample of Daras'
    breath. The machine reflected that Daras' breath alcohol content was
    .10 grams per 210 liters of breath.
    On appeal, Daras challenges the admissibility of the breath test, the
    field sobriety tests, and the evidence offered by the Government to
    prove that Grier's radar detection unit was properly calibrated. He
    2
    alleges that without such evidence, the evidence is insufficient to sup-
    port his convictions. We review the magistrate judge's evidentiary
    rulings for an abuse of discretion. See Benedi v. McNeil-P.P.C., Inc.,
    
    66 F.3d 1378
    , 1383 (4th Cir. 1995). We must affirm the convictions
    if, viewing the evidence and inferences in the light most favorable to
    the government, substantial evidence supports them. See United
    States v. Singh, 
    54 F.3d 1182
    , 1186 (4th Cir. 1995).
    Daras contends that the breath test should not have been admitted
    because the Government failed to present any evidence that the Intox-
    ilyzer 5000 was a scientifically reliable device. He avers that the trial
    court should have required the Government to prove the scientific
    validity of the methodology by which the device measures blood alco-
    hol content, using the standards for assessing the reliability of scien-
    tific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals,
    Inc., 
    509 U.S. 579
    , 592-93 (1993). But Daubert merely requires that
    the proffered scientific evidence be relevant and reliable. Benedi, 
    66 F.3d at 1384
    . Daras does not dispute that the evidence is relevant.
    Moreover, the reliability of the methodology, that is, the scientific
    technique by which breathalysers measure breath alcohol content, is
    well established. See California v. Trombetta , 
    467 U.S. 479
    , 489
    (1984) (recognizing that accuracy of Intoxilyzers has been certified
    by the National Highway Traffic Safety Administration (NHTSA)
    since 1973); United States v. Brannon, 
    146 F.3d 1194
    , 1196 (9th Cir.
    1998) (same); United States v. Reid, 
    929 F.2d 990
    , 994 (4th Cir.
    1991) (stating that breathalyser is the "best means of obtaining evi-
    dence of the breath alcohol content"). We note Daras' contention that
    our comment in Reid has no bearing on this case because it related
    to breathalysers in general and not specifically to the Intoxilyzer
    5000. While Daras presents no reason to conclude that different
    breathalyser machines use a different scientific methodology, we note
    that the device used in Brannon was the same type of breathalyser
    used in this case, the Intoxilyzer 5000. See Brannon, 
    146 F.3d at 1195
    .1
    _________________________________________________________________
    1 Many federal courts hold that Daubert is limited to cases involving
    novel, unique, or untested scientific evidence. See Thornton v. Caterpil-
    lar, Inc., 
    951 F. Supp. 575
    , 578 (D.S.C. 1997); Waitek v. Dalkon Shield
    Claimant's Trust Fund, 
    934 F. Supp. 1068
    , 1087-89 n.10 (N.D. Iowa
    1996). We need not decide in this case whether Daubert's application is
    so limited, or whether breathalysers are novel, unique, or untested scien-
    tific evidence because we find that the breathalyser used in this case was
    both relevant and reliable.
    3
    Daras further avers that the breathalyser results were inadmissable
    because the Government failed to comply with an allegedly assimi-
    lated Virginia statutory provision requiring proof that any breath test
    used by the prosecution be conducted by a person with proper training
    using equipment approved by the Virginia Division of Forensic Sci-
    ence. See 
    Va. Code Ann. § 18.268.9
    . A federal prosecution under the
    Assimilative Crimes Act "assimilates state substantive law pertaining
    to the elements of an offense and its punishment. It does not generally
    adopt state procedure or rules of evidence." See United States v.
    Price, 
    812 F.2d 174
    , 175 (4th Cir. 1987). Accordingly, courts have
    held that the failure to follow state procedures relating to the proper
    administration of breathalysers goes to the weight, and not the admis-
    sibility, of the test. See Brannon, 
    146 F.3d at 1196
    ; United States v.
    Sauls, 
    981 F. Supp. 909
    , 911 (D. Md. 1997).
    We note alternatively, that the record in this case indicates that the
    Government demonstrated the reliability of the equipment and the
    proper administration of the test. It has already been established that
    the Intoxilyzer 5000 is a scientifically reliable device for measuring
    breath alcohol content. Further, the Government submitted into evi-
    dence a printout by the machine itself which stated that the machine
    had been tested and found to be accurate by the Division of Forensic
    Science on May 23, 1997, approximately three months prior to the
    date the test was conducted. Officer Grier also testified that he was
    a certified operator of the machine and that he tested it immediately
    before Daras' breath test to ensure that it was working properly at the
    time he administered it. Finally, Daras concedes that Grier has been
    properly trained to operate the machine, and identifies no error com-
    mitted in the performance of the test. Accordingly, we find that the
    magistrate judge properly admitted and relied on the results of the
    breathalyser test.
    Daras next challenges the admissibility of the field sobriety tests,
    arguing that the Government again failed to show the scientific reli-
    ability of such tests under Daubert. With the exception, however, of
    the horizontal gaze nystagmus (HGN) test, the field sobriety tests
    were not scientific, as they involved no methodology but rather objec-
    tive observations of an individual's performance on simple psycho-
    motor tests. There was no need for any expert testimony regarding
    these tests. See Hulse v. State, 
    961 P.2d 75
    , 93 (Mont. 1998) (recog-
    4
    nizing that the HGN is distinguishable from other field sobriety tests
    because it is a scientific test). As for the HGN, we need not decide
    whether such tests are scientifically reliable, 2 because the results of
    the breathalyser, the remaining field sobriety tests, and Officer Grier's
    testimony were more than adequate to support Daras' conviction.
    Finally, Daras contends that the trial court erred by admitting a
    Certificate of Calibration attesting to the accuracy of the radar unit
    used by Officer Grier, and by admitting a Certificate of Accuracy
    attesting to the accuracy of the 35 mph tuning fork used to calibrate
    the radar unit. The Government also presented, however, a Certificate
    of Accuracy for a 65 mph tuning fork which was also used to cali-
    brate the radar unit. Daras raises no objection to the admission of this
    evidence which, by itself, was sufficient to establish the accuracy of
    the radar unit and support his speeding conviction. See United States
    v. O'Shea, 
    952 F. Supp. 700
    , 703 (D. Colo. 1997). Moreover, the
    Government correctly points out that the officer's visual estimate is
    also sufficient, by itself, to support a conviction. See United States v.
    Wornom, 
    754 F. Supp. 517
    , 519 (W.D. Va. 1991). We therefore
    affirm the order of the district court. We dispense with oral argument
    because the facts and legal contentions are adequately presented in the
    materials before the court and argument would not aid the decisional
    process.
    AFFIRMED
    _________________________________________________________________
    2 For a survey of the case law discussing the reliability of such tests,
    see State v. O'Key, 
    899 P.2d 663
     (Or. 1995).
    5