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United States v. Amaker

United States District Court, D. Maryland

June 21, 2017

UNITED STATES OF AMERICA
v.
SHAQUILLE S. AMAKER, Defendant

          MEMORANDUM OPINION AND ORDER OF COURT

          Thomas M. DiGirolamo United States Magistrate Judge.

         In this case, Defendant is charged with driving under the influence of alcohol, in violation of 36 C.F.R. § 4.23(a)(1); driving while intoxicated, in violation of 36 C.F.R. § 4.23(a)(2);[1]unsafe operation of a vehicle, in violation of 36 C.F.R. § 4.22(b)(1); and failing to slow down to avoid an accident, in violation of 36 C.F.R. § 4.2, incorporating Md. Code Ann., Transp. § 21-801(b). At trial the government offered two exhibits into evidence related to Defendant's breath alcohol test. Defendant objected to the admission of both exhibits. The Court admitted the exhibits conditionally and reserved ruling on their admissibility. The government rested its case, and Defendant elected not to present any evidence. For the reasons set forth below, Defendant's objection is OVERRULED, and the exhibits will be admitted into evidence.

         Two witnesses testified on behalf of the government at the trial. Mr. Augustine Lekettey testified that on May 29, 2016, at approximately 1:40 a.m., he was driving northbound on the Baltimore-Washington Parkway[2] when his car was struck from behind. After the vehicles came to a rest, the two occupants of the striking vehicle approached him. Mr. Lekettey identified Defendant as one of those persons. After a brief conversation, Defendant returned to the striking vehicle and sat in the driver's seat. Some time after the collision, U.S. Park Police Officer Benjamin Tomasiello came upon the scene. Defendant admitted to Officer Tomasiello that the striking vehicle was his and that he was driving. Officer Tomasiello noticed an odor of alcohol coming from Defendant's person and that his eyes were bloodshot, watery, and glassy. Defendant stated that he was coming from the District of Columbia, had been drinking that night, and fell asleep while driving. Believing that Defendant may be under the influence of alcohol, Officer Tomasiello had Defendant perform the horizontal-gaze nystagmus test. Because of safety concerns, this was the only standardized field sobriety test that Officer Tomasiello administered. Officer Tomasiello testified that he has been a patrol officer with the U.S. Park Police for approximately eight years. He is a certified drug recognition expert and a standardized field sobriety test instructor. During his career he has personally made more than 300 arrests of suspected drunk drivers and has participated as a backup officer in many others. After administering the horizontal-gaze nystagmus test to Defendant, Officer Tomasiello placed Defendant under arrest and transported him to the police station.

         At the station, Officer Tomasiello advised Defendant of his rights and asked if Defenant would consent to a breath test. Defendant indicated that he would consent to a breath test. Officer Tomasiello testified that he has been a certified breathalyzer operator since 2009. The equipment that he used to administer the breath test that evening was the Intoximeter EC/IR II (the “Intoximeter”). Officer Tomasiello testified that before administering the test there is a twenty-minute observation period. He advised Defendant that during that observation period Defendant should keep his hands away from his mouth, refrain from burping, hiccupping, and regurgitating anything into his mouth. This is to assure that there is no residual mouth alcohol in Defendant's mouth when the test is administered. He also offered Defendant some water. When the observation period was nearly concluded, Officer Tomasiello entered information related to the case into the Intoximeter and initiated the machine's self-check process to assure that it was working properly. Officer Tomasiello testified that, if the device is not working properly, it will not allow a test to be conducted. The self-check did not show any problems. After the conclusion of the twenty-minute observation period Defendant gave two breath samples.

         At trial Officer Tomasiello identified two exhibits offered by the government related to the breath test. Exhibit 1 is a one-page document titled “United States Park Police, Traffic Safety Unit - Breath Testing Instrument Certification Notice.” Exhibit 1 is dated May 11, 2016, and states the following:

To Whom It May Concern:
This notice certifies that Intoximeter EC/IR II, serial number 010688, has been tested and found to be suitable for use in analyzing breath alcohol for evidential purposes. The instrument conforms to the standards required by the United States Department of Transportation for evidential breath alcohol measurement.
Dry gas standards with National Institute of Standards and Technology traceability are approved for use with this instrument.

         The document is signed by Officer Pentti Gillespie, Technician, Intoximeter EC/IR II, U.S. Park Police Traffic Safety Unit. The document further provides at the bottom:

Date Instrument Certified: May 11, 2016
Date Instrument Certification Expires: August 09, 2016

         Officer Tomasiello testified that Exhibit 1 was the certification notice for the Intoximeter he used to test Defendant's breath. Officer Tomasiello testified that he is personally familiar with Officer Gillespie. He testified that Officer Gillespie comes to the police station periodically to perform the certification tests on the Intoximeter. He testified that, after conducting the certification test, Officer Gillespie prepares the certification notice and leaves a copy at the station, where it is kept in a binder in the sergeant's office. To his knowledge and on the basis of information he has received from Officer Gillespie, he testified that Exhibit 1 was made at or near the time Officer Gillespie performed the certification test, that Exhibit 1 was kept in the course of a regularly conducted activity of the U.S. Park Police, and that the preparation of Exhibit 1 was a regular practice of the U.S. Park Police. On cross examination, Officer Tomasiello admitted that he has never been present when Officer Gillespie has conducted a certification test and prepared the certification notice. He admitted that he had nothing to do with the preparation of Exhibit 1.

         Officer Tomasiello identified Exhibit 2 as the results of Defendant's breath test. Exhibit 2 is a one-page document titled “Intox EC/IR - II: Subject Test.” The top of the form shows information related to the case, including Defendant's name, date of birth, and driver's license number; the date and time of the test; the date and time of the arrest; the name of the arresting officer; the instrument certification date (05/11/2016); the certification expiration date (08/09/2016); the Dry Gas Target (.080); and the phrase “System Check: Passed.” The middle of the form contains information reflecting the actual test results, after which is printed the word “Success.” Below the test results is the following printed statement:

I CERTIFY THAT THE BREATH SAMPLE RESULTS(S) ABOVE WERE ANALYZED BY AN INSTRUMENT THAT HAS BEEN APPROVED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION (NHTSA) AS CONFORMING TO THE MODEL SPECIFICATIONS FOR EVIDENTIAL BREATH ALCOHOL MEASUREMENT DEVICES; THAT THE DRY GAS STANDARDS USED WITH THIS INSTRUMENT HAVE NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY TRACEABILITY; THAT THE TESTING PROCEDURES MEET NHTSA RECOMMENDATIONS AND MANUFACTURER'S SPECIFICATIONS; THAT THE INSTRUMENT WAS CERTIFIED AS ACCURATE WITHIN THE PAST 90 DAYS BY A UNITED STATES PARK POLICE TECHNICIAN WHO IS CERTIFIED BY THE INSTRUMENT MANUFACTURER TO CALIBRATE AND CONDUCT ...

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