United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER OF COURT
M. DiGirolamo United States Magistrate Judge.
21, 2016, Defendant was issued violation notices charging him
with (1) operating or being in actual physical control of a
motor vehicle while under the influence of alcohol, in
violation of 36 C.F.R. § 4.23(a)(1); (2) operating or
being in actual physical control of a motor vehicle with a
breath alcohol concentration of 0.08 grams or more of alcohol
per 210 liters of breath, in violation of 36 C.F.R. §
4.23(a)(2); (3) unsafe operation of a motor vehicle, in
violation of 36 C.F.R. § 4.22(b)(1); and (4) obstructing
traffic, in violation of 36 C.F.R. § 4.13. At his bench
trial on January 9, 2017, Defendant moved for judgment of
acquittal of all four charges at the conclusion of the
Government's case. The Court denied the motion. During
closing argument, Defendant argued that he should be found
not guilty of all the charges because the Government failed
to prove that he was in actual physical control of his motor
vehicle while he was intoxicated at the time of the incident.
The Court took the matter under advisement.
traveling northbound in his patrol car on the
Baltimore-Washington Parkway (the “Parkway”) on
July 21, 2016, at about 3:00 a.m. near Route 197, United
States Park Police (“USPP”) Sergeant Adam
Zielinski observed and approached Defendant's vehicle
parked partially on the right shoulder and in the right lane
on the Parkway. The vehicle's left wheels were a foot in
the lane, and its headlights were on. Sergeant Zielinski
activated his emergency equipment and, leaving his patrol
car, approached the vehicle on foot. Defendant, who was
asleep in the middle of the back seat with his feet on the
center console, was the sole occupant of the vehicle. The
vehicle's engine was running, and its doors were locked.
In an attempt to awaken Defendant, Sergeant Zielinski tapped
loudly on the right rear passenger window several times with
his flashlight. Defendant finally woke up, appearing groggy
and lethargic. Sergeant Zielinski detected an odor of alcohol
and called for officer assistance. The vehicle's air
conditioner was on. Defendant exited the vehicle at the
sergeant's direction. Defendant admitted that he had been
drinking vodka at TGI Fridays, but stated that someone named
“Dirk” had been driving the vehicle. Defendant
stated that he had begun drinking vodka at 8:30 the previous
evening and had stopped drinking at one o'clock that
sergeant performed a horizontal-gaze nystagmus field sobriety
test and a roadside breath test, which was positive for
alcohol. Because of Defendant's inability to maintain his
balance, the sergeant did not administer the “walk and
turn” and “one leg stand” sobriety tests.
On the basis of Sergeant Zielinski's testing, he arrested
Defendant for driving under the influence of alcohol.
searching Defendant incidentally to his arrest, the sergeant
found the vehicle's key fob in Defendant's left rear
pocket. According to Sergeant Zielinski, with this type of
“push start” key fob in close proximity to a
vehicle, a driver could start the vehicle by pushing a start
button inside it. During the sergeant's search of
Defendant's vehicle, he found an open bottle of vodka in
the back seat area where Defendant had been sitting. Officers
at the scene searched the surrounding area but found no other
person in the area. Sergeant Zielinski left the scene with
Defendant in custody before Defendant's vehicle was
Zielinski transported Defendant to the USPP Greenbelt
substation, where Defendant agreed to submit to a breath
alcohol test after he was provided with the 36 C.F.R.
chemical testing notice. Intoxilyzer testing of
Defendant's breath revealed results of 0.19 and 0.21.
Defendant was cited and released.
Defendant's bench trial, the Court ultimately found that,
on July 21, 2016, Defendant was in the back seat of his
vehicle, with its engine running and its lights and air
conditioner on, while it was partially parked in the travel
lane of the Parkway. The Court also found that Defendant had
possessed the vehicle's key fob and had a breath alcohol
level of at least 0.08. The Court further found that there
was an open container of alcohol in close vicinity to
Defendant in the vehicle. Also, there was no evidence of the
presence of anyone else at the scene besides Defendant's
statement to Sergeant Zielinski. The Court, however, reserved
ruling on whether Defendant was in actual physical control of
his vehicle until after the parties submitted briefing on the
law preempts state law on the issue of intoxicated
motor-vehicle operators within national park areas.”
United States v. Coleman, 750 F.Supp. 191, 193 (W.D.
Va. 1990). The Code of Federal Regulations prohibits
“[o]perating or being in actual physical control of a
motor vehicle” while “[u]nder the influence of
alcohol, or a drug, or drugs, or any combination thereof, to
a degree that renders the operator incapable of safe
operation.” 36 C.F.R. § 4.23(a)(1).
The Government bears the burden of proving each element of
this offense, specifically that (1) Defendant was operating
or was in actual physical control of a vehicle, (2) that
Defendant was under the influence of alcohol, or a drug, or
drugs, or any combination thereof, and (3) to a degree of
intoxication that rendered Defendant incapable of safe
United States v. Davis, 261 F.Supp.2d 343, 347 (D.
Md. 2003) (citing 36 C.F.R. § 4.23(a)(1)). It is
undisputed in this case that Defendant was under the
influence of alcohol to a degree that rendered him incapable
of safe operation when Sergeant Zielinski found him on July
21, 2016, on the Parkway, which is under the jurisdiction of
the National Park Service. United States v. Kim, 902
F.Supp.2d 763, 765 (D. Md. 2012). Rather, the issue here is
whether the Government has established beyond a reasonable
doubt that Defendant was in “actual physical
control” of his vehicle at the time he was under the
influence. Defendant contends that the Court should find him
not guilty of driving under the influence of alcohol because
he was not in actual physical control of his motor vehicle
when Sergeant Zielinski arrested him.
“operator” of a motor vehicle is defined as
“a person who operates, drives, controls, otherwise has
charge of or is in actual physical control of a mechanical
mode of transportation or any other mechanical
equipment.” 36 C.F.R. § 1.4(a). Thus, “[t]he
definition of operator encompasses a broader range of
behavior than just driving.” United States v.
Griffin, 400 F. App'x 783, 785 (4th Cir. 2010) (per
curiam). Section 4.23(a)(1) “prohibits not only
operation of a motor vehicle while under the influence, but
extends to ‘being in actual physical control' while
under the influence.” United States v.
McFarland, 369 F.Supp.2d 54, 57 (D. Me. 2005),
aff'd, 445 F.3d 29 (1st Cir. 2006). Thus,
“[i]f ‘being in actual physical control' is
to mean anything, it must refer to something less than actual
determine whether the evidence is sufficient to sustain a
conclusion of ‘actual physical control, ' a
‘totality of circumstances' test is commonly
applied.” Id. at 60 (citing cases). Factors to
consider when ...