Sleeping It Off in Your Car Can Be DUI (and a Statutory Presumption that Defendants with Prior DUIs who Refuse Breathalyzer Tests Were “Under the Influence” Is Not PLAINLY Unconstitutional)

Anthony Bell v. District of Columbia (decided February 25, 2016)

Players: Chief Judge Washington, Associate Judge Thompson, and Senior Judge Newman. Opinion by Judge Thompson. Joseph A. Scrofano for Mr. Bell. Trial Judge: A. Franklin Burgess, Jr.

Facts: Police found Bell asleep in the driver’s seat of a car that was parked outside a nightclub shortly after closing time, with the car keys in his pocket. They had difficulty rousing him, and upon removing him from the vehicle, noted a strong smell of alcohol and slurred speech by Bell. Bell failed the standardized field sobriety tests, was arrested and advised of his rights under D.C.’s Implied Consent Act, D.C. Code § 50-1905. He refused to consent to a breathalyzer test. Bell’s defense was that he was tired from working long hours and in a very deep sleep from which it was difficult to awake. He said he refused the breath test because he had consumed “a couple of beers” and “figured that it would register[.]” Finding “overwhelming” evidence that Bell—who had a prior DUI conviction— was under the influence, the trial judge found him guilty of DUI.

Issue 1: Was Mr. Bell “in actual physical control of the vehicle” as required by the DUI statute, D.C. Code § 50-2206.11?

Holding 1: Yes. Following the factually indistinguishable case of Berger v. District of Columbia, 597 A.2d 407 (D.C. 1991), the Court of Appeals concluded that Bell was in “actual physical control” of his car because he was alone, behind the steering wheel, and had the car keys in his pocket. Thus, he “was capable of starting the vehicle should he have awakened and, in his impaired state, made a decision to drive.”

Issue 2: Does the Implied Consent Act’s statutory presumption that individuals with a prior DUI conviction who refuse a breathalyzer test are “under the influence” unconstitutionally shift the burden to such defendants to prove their innocence?

Holding 2: Not in this case. Reviewing for plain error, the Court of Appeals held that the statutory presumption is not plainly unconstitutional because it is not plainly a mandatory presumption. Without deciding this unpreserved issue “definitively,” the Court noted that despite the mandatory-sounding statutory language, the presumption appears to be treated in practice as a constitutionally acceptable permissive presumption. The Red Book, for example, instructs that when a defendant with a qualifying conviction refuses to submit to chemical testing, jurors “may, but are not required to, conclude that s/he was under the influence.” In this bench trial, moreover, the judge’s ruling made clear that he did not treat the presumption as mandatory in finding Bell was under the influence.

Of Note:

• The Court does not “definitively” hold that the Implied Consent Act’s presumption is always constitutional. If, in a case where the presumption applies, the jury is not instructed with the Red Book’s permissive language, or in a bench trial the judge makes findings that suggest she felt bound by the presumption to find the defendant “under the influence,” defense counsel should object on constitutional grounds.

• The Court of Appeals noted that Bell was found “in the upright position of one intending to drive, rather than a reclined position” that might indicate “he lowered his seat back in order to sleep for a while.” One could use this footnote to attempt to distinguish other cases of intoxicated persons sleeping in a parked car’s reclined driver’s seat or where there are other indications that the person had no intention of driving the car. FT

Read full opinion here.

Plain when? Plain now!

Krishna Patrick Muir v. District of Columbia (decided January 14, 2016).

Players:  Associate Judges Glickman and McLeese, Senior Judge Newman.  Opinion by Judge Glickman; Judge Newman concurs in the judgment.  Trial judge: Anthony Epstein.  Daniel K. Dorsey for Mr. Muir.

Facts:     Mr. Muir was tried for driving under the influence (DUI) and operating a vehicle while impaired (OWI) in 2011, before the Court of Appeals decided, in Taylor v. District of Columbia, 49 A.2d 1259, 1267 (D.C. 2012), that the alcohol impairment threshold is the same for both offenses, and that both require proof of an “appreciable degree” of impairment.  Mr. Muir’s jury was instructed that it could convict Mr. Muir of OWI if it found that his consumption of alcohol impaired his ability to operate a motor vehicle “in any way,” while in order to convict him of DUI, it would have to find “an appreciable degree” of impairment.  The jury convicted Mr. Muir of OWI and acquitted him of DUI.

Issue:  Whether the erroneous instruction, given at a time when the law was unsettled, constituted plain error necessitating reversal of the OWI conviction.   

Held:  Mr. Muir’s conviction was reversed because the Court of Appeals held that all four prongs of the Olano test were satisfied.  Of interest is the “plainness” analysis.  In 1997, the Supreme Court held in Johnson v. United States, 520 U.S. 461 (1997), that when the law at the time of trial was settled and contrary to the law at the time of appeal, it is sufficient for plain error purposes that the error be “plain” at the time of appellate consideration.  Johnson left open, however, the question whether the same rule applies when the law at the time of trial is unsettled.  This question was decided in Henderson v. United States, 133 S.Ct. 1121, 1130-31 (2013), when the Supreme Court held that “whether a legal question was settled or unsettled at the time of trial, it is enough that an error be plain at the time of appellate consideration for the second [plainness] part of the four-part Olano test to be satisfied.”  

In this case, the Court of Appeals adopted the analysis of the Supreme Court in Henderson for the purpose of interpreting local Super. Ct. Crim. R. 52(b).  Following Henderson, it held that plainness will be determined at the time of appellate review, even when the law was unsettled at the time of trial.  Applying this test, the Court concluded the instruction was error and the error was plain.  Because the Court found the remaining prongs of the plain error test were met, it reversed Mr. Muir’s OWI conviction. JF

Read full opinion here.