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United States v. Kirk

United States District Court, Fifth Circuit

October 21, 2013

UNITED STATES OF AMERICA
v.
THOMAS L. KIRK, Defendant.

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART APPELLANT'S MOTION TO APPEAL MAGISTRATE JUDGE'S DECISION

GLEN H. DAVIDSON, Senior District Judge.

Appellant Thomas L. Kirk ("Appellant") timely appeals his convictions, following a nonjury trial before Magistrate Judge David A. Sanders on March 19, 2013, for operating a motor vehicle under the influence of alcohol and/or drugs on the Natchez Trace Parkway (in violation of 36 C.F.R. § 4.23(a)(1)) and careless driving (in violation of 36 C.F.R. § 4.22). See FED. R. CRIM. P. 58(g)(2)(B). Upon due consideration, the Court finds that Appellant's motion to appeal [7, 8, & 12][1] should be granted insofar as the Court finds that there was not sufficient evidence to sustain the DUI conviction, but denied insofar as the Court finds that there was sufficient evidence to support the careless driving conviction.

When reviewing a conviction by a magistrate judge, "[t]he scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge" and "[t]he defendant is not entitled to a trial de novo by a district judge." FED. R. CRIM. P. 58(g)(2)(D). An appellate court reviews the trial court's evidentiary determinations for abuse of discretion. United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003) (citing United States v. Townsend, 31 F.3d 262, 268 (5th Cir. 1994)). "The standard of review for sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Bellew, 369 F.3d 450, 452 (5th Cir. 2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see also United States v. Mitchell, 777 F.2d 248, 260-61 (5th Cir. 1985). "The evidence... must be considered in the light most favorable to the government, giving the government the benefit of all reasonable inferences and credibility choices." United States v. Jackson, 273 F.App'x 372, 373 (5th Cir. 2008) (per curiam) (quoting United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994)). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence." Id. (quoting United States v. Espinoza-Seanez, 862 F.2d 526, 536 (5th Cir. 1988)). In reviewing the arguments and record in the case sub judice under this standard, the Court finds that the evidence was not sufficient to support Appellant's DUI conviction, but was sufficient to support the careless driving conviction. See United States v. El-Zoubi, 993 F.2d 442; 445 (5th Cir. 1993); United States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995), cert. denied, 116 S.Ct. 1582 (1996).

On December 14, 2011, while exercising his duties as a law enforcement officer on the Natchez Trace Parkway, United States Park Ranger Dan Whitcomb ("Whitcomb") observed a motor vehicle without a properly illuminated license plate. He then noticed the driver of the vehicle brake erratically approximately four times while exiting onto the Cliff Gookin Boulevard exit ramp, fail to exhibit a turn signal, cross over the center line of the ramp before drifting back across the lane as he approached a stop sign, proceed through the stop sign without stopping, and enter traffic on Cliff Gookin Boulevard. At this point, Whitcomb initiated a traffic stop. Upon approaching the vehicle, Whitcomb identified the driver of the vehicle by verbal affirmation as Appellant. Whitcomb asked Appellant for his driver's license, but Appellant informed him that he did not have his wallet with him. Whitcomb then asked the driver for his name. When Appellant replied "Thomas, " Whitcomb waited a moment to see if Appellant would state his full name; when Appellant did not, Whitcomb instructed Appellant that he needed Appellant's full name. Appellant stated his full name. Whitcomb observed that Appellant's eyes were bloodshot and apparently noticed the odor of an alcoholic beverage inside the vehicle.

Whitcomb asked Appellant how much alcohol he had consumed, and Appellant stated that he had consumed two alcoholic drinks with dinner that evening. Whitcomb noted that Appellant stumbled over a word as he spoke. Whitcomb then conducted a verbal test wherein he asked Appellant to recite the alphabet from "C" to "V." Despite two opportunities to do so, Appellant was unable to recite the alphabet correctly (Appellant having recited "c" through "P" in the first recitation, and having incorrectly inserted "U" after "Q" in the second recitation). Based on Whitcomb's observations and Appellant's statements, Whitcomb suspected that Appellant was under the influence of alcohol and/or drugs. Whitcomb asked Appellant to exit the vehicle and asked Appellant whether he had any physical impairments. Appellant responded that he had pain in his neck, but that he did not believe it was a physical impairment. Whitcomb asked Appellant if he took medication for the problem, and Appellant informed Whitcomb that he took prescription Lortab for the pain three times a day and that he had taken two doses that day-the more recent dose that evening. Upon being asked whether he wore glasses or contacts, Appellant informed Whitcomb that he did not.

At that point, Whitcomb began to perform standardized field sobriety tests. First, Whitcomb conducted the horizontal gaze nystagmus ("HGN") test. According to National Highway Traffic Safety Administration ("NHTSA") studies, 4 or more out of 6 clues of impairment on this test indicate a 77% probability that the subject's blood alcohol level is greater than.10. Whitcomb observed 3 out of 6 clues of impairment in Appellant's eyes.[2]

Second, Whitcomb conducted the walk-and-turn test. According to NHTSA studies, 2 or more out of 8 clues of impairment indicate a 68% probability that the subject's blood alcohol level is greater than.10. Whitcomb observed 3 out of 8 clues of impairment, specifically: Appellant raised his arms greater than six inches from his sides several times during the walking phase (one clue), performed an improper turn by pivoting on both feet (one clue), and failed to step heel to toe by greater than one-half inch while walking (one clue).

Third, Whitcomb conducted the one-leg-stand test. According to NHTSA studies, 2 or more out of 4 clues of impairment or failure to complete this test indicate a 65% probability that the subject's blood alcohol level is greater than.10. Whitcomb observed 3 out of 4 clues of impairment, specifically: Appellant swayed while balancing during the balancing and counting phase (one clue), raised his arms greater than six inches from his sides several times during the balancing and counting phase (one clue), and hopped on one foot during the balancing and counting phase (one clue). Whitcomb also noted that Appellant was hopping out toward the roadway. Whitcomb terminated the test at this point due to Appellant's lack of balance becoming a safety concern. Appellant claims that he was 50 pounds overweight at that time. Whitcomb testified that Appellant did not appear to be overweight.[3]

After conducting the field sobriety tests, Whitcomb offered Appellant the preliminary breathalyzer test. Despite Appellant's admission that he had consumed two alcoholic drinks with dinner, the result was.000. Whitcomb was surprised by the result. Based on Appellant's overall test results and statements and Whitcomb's observations and experience, Whitcomb determined that Appellant was not driving under the influence of alcohol.

However, Whitcomb testified that based on the totality of the circumstances and the result of his investigation, he had probable cause to believe that Appellant was under the influence of an intoxicating substance and was unable to safely operate his vehicle, and thus that Whitcomb had probable cause to arrest Appellant on charges of DUI (drugs) and careless driving. Whitcomb based this belief on several indicators he had observed during the stop and administration of the field sobriety tests, including Appellant's poor balance, difficulty dividing attention, poor performance including slurred speech on the verbal alphabet recitation test, and statements that he had taken two Lortabs that day (including one that evening) and consumed two alcoholic drinks with dinner. Accordingly, Whitcomb transported Appellant to North Mississippi Medical Center for a blood draw after obtaining Appellant's consent to do so. The medical records from that hospital visit state that Appellant was awake, cooperative, and alert. See North Miss. Med. Ctr. Med. Chart [8-1] at 17.

The blood test revealed the presence of both Lortab (hydrocodone) and a trace amount of cocaine in Appellant's blood. During the trial, Judge Sanders heard expert testimony from T.J. Graham, a forensic scientist at the Mississippi Crime Laboratory, who testified that the amount of cocaine found in Appellant's blood was 29 nanograms, a very small amount (only 9 nanograms above the crime laboratory's cutoff) and already metabolized, and thus had no effect on Appellant on the night in question. Graham also testified that the Lortab was only found in a qualitative analysis and could not be quantified; thus, the amount of Lortab that Appellant had ingested is not ascertainable from the blood report.[4]

Finally, Judge Sanders heard testimony from Appellant, who testified that on the night in question: (1) it was difficult to see to drive with Whitcomb's bright lights behind him and no street lights to help him to see in the darkness; (2) he braked in accordance with his training as a truck driver to "tap, " "tap, " "brake, " and not erratically as Whitcomb contends; (3) as the DVD of the traffic stop confirms, Appellant had told Whitcomb on the night in question that he was not good at driving at night; (4) as the DVD of the traffic stop confirms, Appellant had told Whitcomb on the night in question that he had poor balance; (5) Appellant failed the standardized field sobriety tests because he was 50 pounds overweight; (6) Appellant was prescribed three doses of Lortab a day (a fact uncontested by the Government); and (7) the label on the Lortab bottle indicates that Lortab "may cause drowsiness and dizziness and intensified effects by alcohol are possible" (DVD position 4:20:30).

Given all of the evidence, Judge Sanders found that Whitcomb's observations during the traffic stop and field sobriety tests established probable cause to arrest Appellant for driving under the influence and careless driving, and that the evidence presented in trial supported a finding that Appellant was guilty of operating a motor vehicle while under the influence of drugs and careless driving. Judge Sanders stated into the record:

The Defendant's evidence that gave the Court so much pause was, first-off, certainly, the Defendant here-his portable breathalyzer showed.000. I understand that was disconcerting for [Whitcomb]. That is obviously evidence to support a defense in this case, although the Defendant has been charged under the regulation that is a DUI with respect ...

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