United States District Court, D. Maryland
Lucy A Sugiyama, Defendant, Pro se, Columbia, MD.
For Lucy A Sugiyama, Defendant: Leonard R Stamm, LEAD ATTORNEY, Goldstein and Stamm PA, Greenbelt, MD.
For USA, Plaintiff: Hollis Raphael Weisman, LEAD ATTORNEY, Office of the U.S. Attorney, Greenbelt, MD; Jane F Nathan, LEAD ATTORNEY, Office of the U.S. Attorney, Greenbelt, MD.
MEMORANDUM OPINION AND ORDER OF COURT
Thomas M. DiGirolamo, United States Magistrate Judge.
This matter is before the Court on Defendant's Motion to Dismiss Criminal Refusal Count (the " Motion" ) (ECF No. 11), which the Government opposed (ECF No. 12). No hearing is required. L.R. 105.6. Defendant's Motion is DENIED, for the reasons set forth below.
The following factual summary is derived from the Government's Response to Defendant's Motion. ECF No. 12. At about 5:00 p.m. on March 26, 2015, Officer Cameron Easter of the United States Park Police observed Defendant's vehicle crash off the Baltimore-Washington Parkway, which is in the special maritime and territorial jurisdiction of the United States. Upon assisting Defendant, Officer Easter observed that Defendant appeared disoriented, so the officer called for paramedics, who transported Defendant to the hospital. At the hospital, Officer Matthew Manning arrived and conducted standardized field sobriety tests on Defendant. A roadside breath test was negative for alcohol. On the basis of Defendant's performance on the field sobriety tests, the officers' observations, and the opinion of the examining physician, the officers believed that Defendant was under the influence of drugs. Defendant was thus read the provisions of the " 36 CFR Chemical Testing Notice"  and was asked if she would submit to a blood draw. Defendant refused, so Officer Easter obtained a telephonic oral warrant under Fed. R. Crim. P. 41(d)(3). Defendant ultimately was charged with, among other offenses, driving under the influence of alcohol and with a blood alcohol concentration of .08 or higher, and refusing to submit to a chemical test in violation of 36 C.F.R. § 4.23(a)(1), (a)(2), and (c)(2).
Defendant argues that the charge of refusing to submit to a chemical test must be dismissed because the refusal
statute (36 C.F.R. § 4.23(c)(2)) is unconstitutional under the Fourth Amendment. " [I]t violates the Fourth Amendment to criminalize a refusal to consent to a search." Def.'s Mot. 1, ECF No. 11.
The Court addressed a similar argument raised by the defendant in United States v. Jones, No. 8:14-po-8559-TMD, (D. Md. June 25, 2015). As in Jones, the provisions of 36 C.F.R. § 4.23 and 18 U.S.C. § 3118 apply to this case. Title 36 C.F.R. § 4.23 provides:
(a) Operating or being in actual physical control of a motor vehicle is prohibited while:
(1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or
(2) The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph.
(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.
(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 or urine for the purpose of determining blood alcohol and drug content.
(2) Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissable [sic] in any related judicial proceeding.
(3) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.
(4) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by ...