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Perez v. United States

United States District Court, E.D. Virginia, Norfolk Division

February 28, 2014

ALEX J. PEREZ, Appellant,
v.
UNITED STATES of AMERICA, Appellee.

OPINION AND FINAL ORDER

HENRY COKE MORGAN, Jr., Senior District Judge.

Pursuant to Federal Rule of Criminal Procedure 58(g)(2)(B), appellant Alex J. Perez ("Appellant"), appeals his conviction for Driving Under the Influence of Alcohol, second offense, under the special maritime and territorial jurisdiction of the United States, in violation of the Assimilated Crimes Act, 18 U.S.C. §§ 7 and 13 ("ACA"), assimilating Virginia Code §§18.2-266 and 18.2-270. The Appellant was found guilty following a bench trial before a magistrate judge, which took place on September 4, 2013. After a full review of the record, the Appellant's conviction is AFFIRMED.[1]

I. FACTUAL AND PROCEDURAL HISTORY

In the early morning hours of July 12, 2013, Appellant was issued a violation notice for driving under the influence of alcohol while on Naval Station Norfolk (the "Base" or "Station"), a federal military installation located within the special maritime and territorial jurisdiction of the United States in the Eastern District of Virginia. It is not open to the general public, is surrounded by fencing, and the methods of ingress and egress arerestricted by gates, manned by armed guards. Only authorized person may access the Base, including: Department of Defense employees, their dependents, military retirees, authorized contractors, individuals who may be sponsored by those with authorized access, and individuals with authorized business on the Base who have obtained a pass from the Pass and Identification Office. Therefore, while public access to the Base is restricted, a limited segment of the population is admitted onto Station grounds with proper authorization.

Preceding Appellant's arrest, a Base officer, Corporal Cooke, observed him wobbling on his moped while he was driving on a Base road (the "Road"), and pulled him over for not wearing a helmet. Cooke noted Appellant's bloodshot eyes and the wafting smell of alcohol. When Appellant admitted to drinking several beers and failed to successfully complete even one of a number of field sobriety tests, he was arrested and transported to the police station where he willingly provided a breath sample. The breath sample was found to have a content of 0.18 grams of alcohol per 210 liters of breath. The Appellant had been previously convicted of DUI on September 25, 2012, in Newport News General District Court.

Subsequent to his arrest, the United States Attorney charged Appellant in a two-count Criminal Information, Doc. 1, with 1) Driving and Operating a Motor Vehicle Under the Influence, in violation of 18 U.S.C. §§ 7 and 13, assimilating Virginia Code §§ 18.2-266 and 18.2-270; and 2) Operating a Motor Vehicle in Violation of License Restrictions, in violation of 18 U.S.C. §§ 7 and 13, assimilating Virginia Code § 18.2-272.

On August 7, 2013, Appellant entered a plea of not guilty, waived his right to a jury, and participated in his bench trial. Following the completion of the government's evidence, Appellant made a Motion for Judgment of Acquittal pursuant to Rule 29 of Criminal Procedure, arguing that the government had failed to prove that the Appellant had operated the vehicle on a public highway, as required by the Virginia Code. The court heard oral argument, but withheld a finding of guilt or innocence until the parties filed briefs on the issue of whether the phrase "public highway" added an additional element that the government needed to prove in order to secure a conviction for driving under the influence.

On September 4, 2013, after hearing all of the evidence the court found Perez guilty of driving under the influence, sentencing him to a term of forty (40) days in jail, one(1) year of probation, a $500 fine, and a special assessment of twenty-five ($25) dollars. Doc. 16. Appellant appealed the judgment of conviction on September 4, 2013. Doc. 21.

II. ISSUE ON APPEAL

In this appeal, Appellant argues that the magistrate judge erred in finding that the Base Road on which he was driving is a "public highway" for the purposes of the Virginia statute at issue.[2] He further argues that if this Court were to rule in his favor-that the roads of the Station are not "public highways"-it would not have far-reaching implications for the ACA. Doc. 26.

The magistrate judge analyzed the issue of whether the Road is a "public highway" using traditional principles of statutory interpretation[3] and case law. The court found that given recent Virginia case law and the 2006 Amendment4 to the definition of "highway" in the relevant Virginia statute that the Road is, indeed, a "public highway." See Doc. 18.

III. ANALYSIS

Under the ACA, conduct that occurs on land under the special maritime and territorial jurisdiction of the United States which is not expressly prohibited by federal law is governed by the penal laws of the state where the land is located. The ACA assimilates the entire substantive law of the state, which includes laws relating to the definition and scope of an offense and laws addressing the manner in which an offense is to be punished. See, e.g., United States v. King , 824 F.2d 313, 315 (4th Cir. 1987).

To begin, this Court notes that it is limited to interpreting, to the best of its ability, the relevant statute defining "highway" as it was enacted and as it has been construed by the courts of Virginia. See United States v. Adams , 426 F.3d 730, 732 (4th Cir. 2005). Prior to 2006, the Virginia Code defined "highway, " in relevant part to include "the entire width between the boundary lines of every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth, including the streets and alleys." Va. Code § 46.2-100. To determine whether a road constituted a "highway" according to the Code of Virginia, courts looked to the nature of the way or place, and the degree of open access for purposes of vehicular travel by the public, United States v. Smith , 395 F.3d 516, 520 (4th Cir. 2005), relying upon Prillaman v. Commonwealth , 100 S.E.2d 4 (1957), as the seminal case in determining whether a road is a public highway under Virginia law. The Prillaman court proclaimed that "the true test' of ...


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