United States v. Carly Ahlstrom , 530 F. App'x 232 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4772
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLY AHLSTROM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O'Grady, District
Judge. (1:12-cr-00298-LO-1)
Argued: May 16, 2013 Decided: June 24, 2013
Before TRAXLER, Chief Judge, THACKER, Circuit Judge, and Ellen
L. HOLLANDER, United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by unpublished opinion. Judge Hollander wrote the
opinion, in which Chief Judge Traxler and Judge Thacker joined.
ARGUED: Thomas Kenneth Plofchan, Jr., WESTLAKE LEGAL GROUP,
Sterling, Virginia, for Appellant. Stacy Bogert, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Neil H. MacBride, United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
ELLEN LIPTON HOLLANDER, District Judge:
Following a bench trial conducted by a federal magistrate
judge, Carly Ahlstrom was convicted of one count of driving
while intoxicated, in violation of 36 C.F.R. § 4.23(a)(2). The
district court affirmed the conviction. On appeal to this
Court, Ahlstrom contends that the initial stop of her vehicle
violated the Fourth Amendment. She also challenges the
admissibility and evidentiary weight of the breath alcohol test
used to prove her intoxication. Finding no error, we shall
affirm. 1
I.
As a result of events that occurred on January 6, 2012,
Carly Ahlstrom was charged with driving without a tag light, in
violation of 36 C.F.R. § 4.2, incorporating Va. Code Ann. §
46.2-1013 (“Citation 3326984”). See Joint Appendix (“J.A.”) at
5, 22. The Virginia statute requires illumination of a
vehicle’s rear tag so that it is visible “from a distance of 50
feet to the rear.” Ahlstrom was also charged with driving under
the influence of alcohol, in violation of 36 C.F.R. § 4.23(a)(1)
(“Citation 3326985”). J.A. at 6. In addition, she was charged
1
The magistrate judge had jurisdiction pursuant to 18
U.S.C. § 3401, and the district court had jurisdiction under 18
U.S.C. § 3402. This Court exercises jurisdiction pursuant to 28
U.S.C. § 1291.
2
with driving while intoxicated, in violation of 36 C.F.R. §
4.23(a)(2), prohibiting the operation of a motor vehicle with a
breath alcohol content of 0.08 grams of alcohol or more per 210
liters of breath (“Citation 3326986”). See J.A. at 7, 22-23.
At a hearing held before a federal magistrate judge on June
21, 2012, Ahlstrom moved to suppress evidence allegedly obtained
in violation of her Fourth Amendment rights. See J.A. at 8, 21.
In particular, she claimed that U.S. Park Police Officer Pentti
Gillespie, who executed the vehicle stop, lacked reasonable
suspicion to justify the stop. Id. at 21, 49-50. Finding that
Officer Gillespie had probable cause to execute the stop based
on Ahlstrom’s failure to illuminate her rear license plate, as
required by Virginia law, the magistrate judge denied the
motion. Id. at 51. The trial followed immediately thereafter.
The following evidence was adduced at the motion hearing and the
trial.
At approximately 2:45 a.m. on January 6, 2012, Officer
Gillespie observed a Lexus vehicle traveling southbound on the
George Washington Memorial Parkway (the “Parkway”), near Reagan
National Airport in Alexandria, Virginia. Id. at 25-26. At the
time, Officer Gillespie was parked in a turn lane on the
northbound side of the Parkway, but parallel to the Parkway,
such that he could see traffic on both the northbound and
southbound sides. Id. at 26-27, 35.
3
When the Lexus approached Officer Gillespie’s patrol car,
the officer observed the driver hit the brakes suddenly, causing
the vehicle to “dip down,” although the vehicle was not going
“excessively over the speed limit.” Id. at 27. As the Lexus
passed the police vehicle, Officer Gillespie looked in his side-
view mirror and noticed that the rear license plate of the Lexus
was not visible in the dark, which he understood to be a
violation of Virginia law, requiring illumination of a rear tag
to provide visibility “from a distance of 50 feet to the rear.”
Id. at 30-31, 45; see Va. Code Ann. § 46.2-1013.
Because the Parkway is within the boundaries of federally
owned land administered by the National Park Service, id. at 29,
drivers are subject to the federal traffic regulations set forth
in Chapter I, Title 36 of the Code of Federal Regulations. See
36 C.F.R. §§ 1.2(a), 4.1. The federal traffic regulations
incorporate state law, “[u]nless specifically addressed” by the
federal regulations. Id. § 4.2(a). “Violating a provision of
State law is prohibited.” Id. § 4.2(b).
The officer followed the vehicle southbound for about a
half mile, and observed it weaving several times within its
lane. Id. at 31, 40-41. Officer Gillespie testified that,
while he followed the vehicle, “there was a time” that he “could
see the back of [the] car . . . and not see [its] tag light.”
Id. at 44. However, while Officer Gillespie was behind the
4
Lexus, the headlights of the officer’s vehicle illuminated the
rear of the Lexus from a distance of more than 50 feet, and
Officer Gillespie admitted that he could not discern at that
time whether the license plate was properly illuminated. Id. at
38-39.
Nevertheless, based on his earlier observations, Officer
Gillespie turned on his emergency lights to execute a traffic
stop. Id. at 28. The driver of the Lexus did not pull over for
another two-tenths of a mile. Id. at 29. Upon approaching the
vehicle, Officer Gillespie determined that Ahlstrom was the
driver. Id. at 53. A female passenger was in the front seat,
and another was in the rear seat. Id. Officer Gillespie
noticed that Ahlstrom and the front passenger were wearing coats
that were on backwards, their legs were bare, and underwear and
other clothing was strewn about the vehicle. Id. at 54.
According to Gillespie, Ahlstrom explained that she and the
front-seat passenger had been playing a game, and she had not
stopped the vehicle sooner because she was not fully clothed.
Id.
Officer Gillespie also observed that Ahlstrom’s eyes were
“red and glassy,” and he “detected an odor of alcoholic beverage
emanating from her.” Id. Ahlstrom denied that she had been
drinking, but stated that the front-seat passenger had been
drinking. Id.
5
Based on his observations, Officer Gillespie administered
three field sobriety tests to Ahlstrom: the “horizontal gaze
nystagmus” test (“HGN”), the “walk and turn” test, and the “one-
leg-stand” test. Id. at 56-57, 61. According to Officer
Gillespie, Ahlstrom’s performance on the HGN and walk-and-turn
tests indicated “a high probability” that she was intoxicated.
Id. at 62, 64. As a result of the field sobriety tests as well
as his observations, Officer Gillespie placed Ahlstrom under
arrest and transported her to the Park Police station. Id. at
65. Along the way, and before Ahlstrom was advised of her
Miranda rights, she blurted that she knew she should not have
been driving, but did so anyway. Id. at 65-66.
At the station, Officer Gillespie administered two tests of
Ahlstrom’s breath alcohol content (“BrAC”), using a device known
as an Intoximeter EC/IR-II (the “Intoximeter”). Id. at 67-69.
Officer Gillespie testified that he is a trained and certified
operator of the Intoximeter, and had administered hundreds of
tests using the device on individuals suspected of driving under
the influence. Id. at 68-69.
Pursuant to Park Police training, Officer Gillespie
observed Ahlstrom for twenty minutes before administering the
test, to ensure that she did not burp, belch, or hiccup, and
provided Ahlstrom with water to rinse out her mouth. Id. at 69-
6
70. 2 Additionally, Officer Gillespie testified that the
Intoximeter was operating properly at the time. Id. at 70. In
this regard, he explained that the Intoximeter undergoes a self-
test before use, and is designed to disable itself if a
malfunction is detected. Id. at 70-71.
The test results were memorialized in a printout generated
by the Intoximeter, which was entered into evidence, over
objection. See id. at 93, 154. The first test reported that
Ahlstrom’s BrAC was 0.114 grams of alcohol per 210 liters of
breath. Id. at 154. The second test reported that Ahlstrom’s
BrAC was 0.116 grams of alcohol per 210 liters of breath. Id.
Both readings are above the legal limit for motor vehicle
operators set by 36 C.F.R. § 4.23(a)(2), which is 0.08 grams of
alcohol per 210 liters of breath.
Although Officer Gillespie was not personally involved with
the maintenance of the Intoximeter, J.A. at 91, the printout
reflected that the device had been certified for accuracy on
November 14, 2011, less than two months before it was used on
Ahlstrom. Id. at 154. The printout also included the following
2
The precautions, including the observation period, are
meant to ensure that any mouth alcohol, which can skew test
results, dissipates before breath samples are taken. See United
States v. Brannon, 146 F.3d 1194, 1196 (9th Cir. 1998) (citing 2
Richard E. Erwin, Defense of Drunk Driving Cases §§ 18.03, 21.06
(3d ed. 1995)).
7
attestation clause, which Officer Gillespie and Ahlstrom signed,
id.:
I CERTIFY THAT THE BREATH SAMPLE RESULT(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 SCIENTIFIC ASPECTS OF THE BREATH TESTING
PROGRAM ARE OVERSEEN BY THE DISTRICT OF COLUMBIA’S
CHIEF/DEPUTY CHIEF TOXICOLOGIST; 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 ACCURACY CHECKS WITH THIS INSTRUMENT; THAT I
AM CERTIFIED TO CONDUCT SUCH TESTING; AND THAT SET
PROCEDURES WERE FOLLOWED WHILE OBTAINING THE ABOVE
BREATH SAMPLE RESULT(S).
Ahlstrom contested the admissibility of the Intoximeter
test results, asserting that Officer Gillespie had not observed
Ahlstrom for the full twenty minutes before administering the
breath tests. Id. at 93. She also challenged the Intoximeter’s
evidentiary weight, on the ground that the Government had not
provided evidence that the device was reliable or properly
calibrated. Id. at 99-100. The magistrate judge rejected those
contentions.
The court convicted Ahlstrom on Citation 3326986, for
operating a motor vehicle with a BrAC of 0.08 grams of alcohol
or more per 210 liters of breath, in violation of 36 C.F.R. §
4.23(a)(2). See J.A. at 116. Citation 3326985 was merged with
8
the conviction and administratively closed. Id. The court
found Ahlstrom not guilty on Citation 3326984, for driving
without a tag light. See id.Ahlstrom subsequently appealed to the United States
District Court for the Eastern District of Virginia. See id. at
127. Noting that “the car went right by the officer,” who “saw
. . . no light illuminating the license,” the district court
found “sufficient evidence” to justify the vehicle stop. Id. at
164. Further, the district court found that the Intoximeter
test results were admissible and sufficient to support the
conviction. Id. Accordingly, on September 14, 2012, the
district court denied the appeal. Id. Ahlstrom then filed a
timely notice of appeal to this Court. Id. at 167.
II.
A.
On appeal, Ahlstrom contends that the district court erred
in finding sufficient evidence to support the vehicle stop. She
also challenges the court’s ruling as to the admissibility and
evidentiary weight of the breath alcohol tests used to prove her
intoxication.
Under Fed. R. Crim. P. 58(g)(2)(D), a district court
reviewing a bench trial conducted by a magistrate judge
“utilizes the same standards of review applied by a court of
appeals in assessing a district court conviction.” United
9
States v. Bursey, 416 F.3d 301, 305 (4th Cir. 2005). In turn,
“our review of a magistrate court’s trial record is governed by
the same standards as was the district court’s appellate
review.” Id. at 305-06.
With respect to the denial of Ahlstrom’s motion to suppress
and Ahlstrom’s challenges to the Intoximeter test results,
“[f]indings of fact made by the trial court are reviewed for
clear error, and issues of law (such as the interpretation of
statutes and regulations) are reviewed de novo.” Id. at 306;
see also United States v. Abramski, 706 F.3d 307, 313-14 (4th
Cir. 2013). We consider the evidence in the light most
favorable to the prevailing party. United States v. Seidman,
156 F.3d 542, 547 (4th Cir. 1998). Thus, “[w]e assess
challenges to the sufficiency of the evidence by viewing it —
including all reasonable inferences to be drawn therefrom — in
the light most favorable to the Government.” Bursey, 416 F.3d
at 306; see also United States v. Vankesteren, 553 F.3d 286, 288
(4th Cir. 2009).
B.
1.
Ahlstrom complains that Officer Gillespie’s stop of her
vehicle violated her rights under the Fourth Amendment, and
therefore evidence obtained as a result of the stop should have
been suppressed as fruit of the poisonous tree. We disagree.
10
A routine vehicle stop by a police officer constitutes a
seizure under the Fourth Amendment. United States v.
Digiovanni, 650 F.3d 498, 506 (4th Cir. 2011) (citing Whren v.
United States, 517 U.S. 806, 809-10 (1996)). As such, a vehicle
stop is subject to the Fourth Amendment imperative “‘that it not
be unreasonable under the circumstances.’” United States v.
Wilson, 205 F.3d 720, 722 (4th Cir. 2000) (quoting Whren, 517
U.S. at 809-10)). This requirement is satisfied by the police
officer’s reasonable articulable suspicion of a traffic
violation. United States v. Kellam, 568 F.3d 125, 136 (4th Cir.
2009); see also United States v. Branch, 537 F.3d 328, 335 (4th
Cir. 2008) (“Observing a traffic violation provides sufficient
justification for a police officer to detain the offending
vehicle . . . .”).
Notably, the “‘reasonable suspicion’ standard is ‘less
demanding . . . than probable cause.’” Branch, 537 F.3d at 336(quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)); see
United States v. Lawing, 703 F.3d 229, 236 (4th Cir. 2012),
cert. denied, ___ U.S. ____, 133 S. Ct. 1851 (2013). In fact,
“the quantum of proof necessary to demonstrate ‘reasonable
suspicion’ is ‘considerably less than [a] preponderance of the
evidence.’” Branch, 537 F.3d at 336 (quoting Wardlow, 528 U.S.
at 123) (alteration in Branch). We have explained:
11
In order to demonstrate reasonable suspicion, a police
officer must offer “specific and articulable facts”
that demonstrate at least “a minimal level of
objective justification” for the belief that criminal
activity is afoot. Judicial review of the evidence
offered to demonstrate reasonable suspicion must be
commonsensical, focused on the evidence as a whole,
and cognizant of both context and the particular
experience of officers charged with the ongoing tasks
of law enforcement.
Branch, 537 F.3d at 337 (internal citation omitted); see also
United States v. Powell, 666 F.3d 180, 186 (4th Cir. 2011).
Because this standard is objective, not subjective, “[a]ny
ulterior motive a police officer may have for making the traffic
stop is irrelevant.” Digiovanni, 650 F.3d at 506 (citing Whren,
517 U.S. at 813).
Officer Gillespie executed a stop of Ahlstrom’s vehicle
because her rear tag was not properly illuminated, as required
by Va. Code Ann. § 46.2-1013. It provides that the rear tag of
a vehicle must be illuminated so that it is visible “from a
distance of 50 feet to the rear.” Officer Gillespie testified
that he looked in his side-view mirror as Ahlstrom’s vehicle
passed his on the Parkway, and noticed that her vehicle’s rear
tag was not visible in the dark. J.A. at 45. Further, he
testified that, had Ahlstrom’s rear tag been properly
illuminated, he would have been able to see it. Id.To be sure, as Ahlstrom observes, App. Br. at 21-23,
Officer Gillespie did not specifically testify that he was
12
within 50 feet of the rear of Ahlstrom’s vehicle at the time it
passed. But, from the officer’s uncontroverted testimony as to
the proximity of the respective vehicles at the relevant time,
the finder of fact could infer that Gillespie was within 50 feet
of Ahlstrom’s vehicle when he noticed that her rear tag was not
illuminated. See United States v. Mubdi, 691 F.3d 334, 342 (4th
Cir. 2012) (upholding legality of traffic stop based on
testimony of police officers as to proximity of defendant’s
vehicle to their patrol car, allegedly in violation of North
Carolina law prohibiting motorists from following “too closely”
behind another vehicle). Even if Officer Gillespie incorrectly
believed that he was within 50 feet at the time, that mistake
would have been reasonable, based on the evidence. See id.(“‘[I]f an officer makes a traffic stop based on a mistake of
fact, the only question is whether his mistake of fact was
reasonable.’”) (quoting United States v. Chanthasouxat, 342 F.3d
1271, 1276 (11th Cir. 2003)).
As noted, the standard for a vehicle stop does not demand
certainty, only “‘a minimal level of objective justification.’”
Branch, 537 F.3d at 337 (citation omitted). Viewing the
evidence in the light most favorable to the Government, Seidman,
156 F.3d at 547, Officer Gillespie had reasonable, articulable
suspicion to execute a traffic stop based on Ahlstrom’s
violation of a Virginia traffic law. See 36 C.F.R. § 4.213
(incorporating state law); Va. Code Ann. § 46.2-1013.
Accordingly, we conclude that Ahlstrom’s motion to suppress was
properly denied.
2.
Federal regulations prohibit the operation of a motor
vehicle within “[t]he boundaries of federally owned lands and
waters administered by the National Park Service,” 36 C.F.R. §
1.2(a)(1), while “[t]he alcohol concentration in the operator’s
. . . breath is . . . 0.08 grams or more of alcohol per 210
liters of breath.” Id. § 4.23(a)(2). Upon probable cause to
believe that a motor vehicle operator is unlawfully intoxicated,
the operator is required to submit to a breath alcohol test.
Id. § 4.23(c)(1). The applicable regulation, 36 C.F.R.
§ 4.23(c)(4), provides: “Any test shall be conducted by using
accepted scientific methods and equipment of proven accuracy and
reliability operated by personnel certified in its use.” At
trial, the Government relied on the Intoximeter’s test results
to prove that Ahlstrom’s BrAC exceeded the legal limit
prescribed by 36 C.F.R. § 4.23(a)(2).
We have long recognized that a “breathalyzer test” is the
“best means of obtaining evidence of . . . breath alcohol
content.” United States v. Reid, 929 F.2d 990, 994 (4th Cir.
1991). Breathalyzers employ “methodology [that] is well-known
and unchallenged.” United States v. Brannon, 146 F.3d 1194,
14
1196 (9th Cir. 1998). Ahlstrom asserts, however, that the
Intoximeter was not shown to be “equipment of proven accuracy
and reliability,” as required under 36 C.F.R. § 4.23(c)(4). In
particular, she claims that there was insufficient evidence to
prove that the device was functioning accurately at the time the
breath alcohol test was administered. Therefore, Ahlstrom
argues that the test results were improperly admitted into
evidence at trial. Even with the test results, Ahlstrom
contends, alternatively, that the evidence was insufficient to
support her conviction. Neither argument is persuasive. 3
The regulation at issue, 36 C.F.R. § 4.23(c)(4), does not
purport to impose a heightened standard for the admissibility of
machine-generated evidence. In promulgating 36 C.F.R. §
4.23(c), the Department of Interior indicated:
Paragraph (c)(4) limits the conducting of quantitative
tests to accepted scientific methods and equipment of
proven accuracy and reliability operated by personnel
certified in its use. The NPS intent is to assure
that equipment and methods used for such tests are of
3
We have not previously discussed the “accuracy and
reliability” requirement of 36 C.F.R. § 4.23(c)(4) in a
published opinion. In their briefs, both sides discussed United
States v. Daras, 164 F.3d 626, 1998 WL 726748, at *1-2 (4th Cir.
Oct. 16, 1998) (per curiam). There, we found a breath test
device accurate and reliable under 36 C.F.R. § 4.23(c)(4)
because it had been certified as accurate three months prior to
use; it was approved for evidential use by the National Highway
Traffic Safety Administration; it had been tested and found to
be working properly “immediately before” use; and the test was
administered properly. See Daras, 1998 WL 726748, at *1-2.
15
a type or nature commonly used by Federal, State and
local law enforcement agencies and accepted as
reliable for such purposes by Federal, State or local
courts.
Vehicles & Traffic Safety, Dep’t of the Interior, Nat’l Park
Serv., 52 Fed. Reg. 10670-01, 10681 (Apr. 2, 1987) (emphasis
added). The regulation should be applied consistent with our
general standards for evaluating the reliability of machine-
generated evidence.
In United States v. Washington, 498 F.3d 225 (4th Cir.
2007), we explained: “Any concerns about the reliability
of . . . machine-generated information [are] addressed through
the process of authentication . . . .” Id. at 231.
Authentication of such information is generally satisfied by
“evidence ‘describing [the] process or system used to produce
[the] result’ and showing it ‘produces an accurate result.’”
Id. (quoting Fed. R. Evid. 901(b)(9)) (alterations in
Washington). We illustrated the application of this standard to
the results of a blood alcohol test, as follows:
When information provided by machines is mainly a
product of “mechanical measurement or manipulation of
data by well-accepted scientific or mathematical
techniques,” reliability concerns are addressed by
requiring the proponent to show that the machine and
its functions are reliable, that it was correctly
adjusted or calibrated, and that the data (in this
case, the blood) put into the machine was accurate
(i.e., that the blood put into the machine was the
defendant’s).
16
Id. at 231 (quoting 4 Mueller & Kirkpatrick, Federal Evidence §
380, at 65 (2d ed. 1994)). 4
Applying the standard set forth above, we are satisfied
that the evidence presented at trial adequately supported the
admissibility of the Intoximeter test results.
First, the Intoximeter and its functions were shown to be
generally reliable and accurate. According to the Intoximeter’s
attestation clause, the device “ha[d] been approved by the
National Highway Traffic Safety Administration (NHTSA) as
conforming to the model specifications for evidential breath
alcohol measurement devices.” J.A. at 154. 5 NHTSA certification
4
Washington held that “mechanical computer printouts”
reporting the results of a blood alcohol test are not
testimonial hearsay for purposes of the Confrontation Clause
because “the raw data generated by the machines do not
constitute ‘statements,’ and the machines are not ‘declarants.’”
498 F.3d at 231. Ahlstrom has not asserted a Confrontation
Clause challenge to the admission of the test results, although
she cites, in passing, Bullcoming v. New Mexico, ___ U.S. ____,
131 S. Ct. 2705 (2011) (holding that forensic laboratory report
certifying that defendant’s blood alcohol concentration was
above legal limits constituted testimonial hearsay under
Confrontation Clause because it was not introduced through
testimony of the analyst who had performed the certification).
5
Ahlstrom mistakenly asserts that NHTSA approval was not
introduced into evidence. In any event, the list of approved
devices is published in the Federal Register, see, e.g.,
Conforming Products List of Evidential Breath Alcohol
Measurement Devices, 77 Fed. Reg. 35747-01 (June 14, 2012), and
subject to judicial notice by this Court. 44 U.S.C. § 1507(“The contents of the Federal Register shall be judicially
noticed . . . .”); see Colonial Penn Ins. Co. v. Coil, 887 F.2d
(Continued)
17
is widely accepted by courts as evidence of a device’s
reliability. See California v. Trombetta, 467 U.S. 479, 489 &
n.9 (1984) (recognizing accuracy of breath alcohol testing
device based on NHTSA and state certification); Brannon, 146
F.3d at 1196 (same). And this is for good reason. The NHTSA, a
unit of the Department of Transportation, has been evaluating
breath alcohol testing devices for evidential use for thirty
years. See Conforming Products List of Evidential Breath
Alcohol Measurement Devices, 77 Fed. Reg. 35747-01, 35747 (June
14, 2012); Standard for Devices to Measure Breath Alcohol, 38
Fed. Reg. 30459-02 (Nov. 5, 1973). It “provid[es] a centralized
qualification test program for breath-testing devices designed
to collect evidence in law enforcement programs.” Model
Specifications for Devices to Measure Breath Alcohol, 58 Fed.
Reg. 48705-01, 48706 (Sept. 17, 1993). Notably, to achieve
NHTSA approval, a device must undergo a rigorous battery of
tests, conducted “semi-annually or as necessary.” See id.Second, evidence was introduced to show that the
Intoximeter was accurately calibrated at the time the test was
administered. Specifically, the Intoximeter’s attestation
clause indicated that the device had been “certified as accurate
1236, 1239-40 (4th Cir. 1989) (“[A]n appellate court may take
judicial notice of facts.”).
18
within the past 90 days by a United States Park Police
technician who is certified by the instrument manufacturer to
calibrate and conduct accuracy checks.” J.A. at 154. Indeed,
it had been calibrated on November 14, 2011, less than two
months before it was used for Ahlstrom. See id. Additionally,
Officer Gillespie testified that the Intoximeter is designed to
conduct a self-diagnostic test before use, and will take itself
out of operation if a malfunction is detected. He is well
trained in its use, and stated that the self-diagnostic test did
not reveal any problems.
Ahlstrom’s metaphysical doubts are not persuasive, and her
reliance on United States v. Foster, 829 F. Supp. 2d 354 (W.D.
Va. 2011), which involved a charge for driving under the
influence, in violation of 36 C.F.R. § 4.23(a)(1), is misplaced.
In Foster, the district court excluded, as inadmissible hearsay,
a certificate of accuracy prepared by a police technician who
did not testify. See id. at 363-65. Instead, testimony was
elicited from the officer who had administered the breath
alcohol test. He only knew “from training, not from personal
experience, that if the machine had not been certified as
accurate, it would produce an error reading” and not operate.
Id. at 369. Unlike in this case, it was the officer’s “first
time using the machine for a case-related test.” Id. Moreover,
19
“there [wa]s no certification on the face” of the test results
“regarding the accuracy of the testing equipment.” Id. at 368.
Notably, and contrary to Ahlstrom’s position, the district
court found the test results admissible. Id. at 367. However,
it declined to give them weight because, in its view, “[t]his
evidence [was] . . . not enough to establish that the machine
was in good working order on the night in question.” Id. at
369.
Here, the attestation clause produced as part of the
Intoximeter’s test results provided evidence of accuracy, on the
face of the printout. As noted, it had been calibrated for
accuracy within the past two months, and was approved for
evidential use by the NHTSA. Moreover, Officer Gillespie was
familiar with the self-test functionality based on his personal
experience in administering hundreds of tests, even if he lacked
knowledge of the self-test’s design.
Accordingly, we find no error in the court’s admission of
the test results or in its determination to ascribe weight to
the test results. See, e.g., Daras, supra n.3, 1998 WL 726748,
at *1-2; United States v. Hamblen-Baird, 266 F.R.D. 38, 40-41
(D. Mass. 2010) (admitting BrAC test results under 36 C.F.R. §
4.23(c)(4) because device was NHTSA approved, test printout
showed annual certification, it was used properly, and there was
“no indication” of a malfunction).
20
To the extent that Ahlstrom contends that the evidence was
not sufficient to support her conviction, see App. Br. at 14, we
disagree. Ahlstrom has not overcome the “heavy burden” for a
sufficiency of the evidence challenge. United States v. Hoyte,
51 F.3d 1239, 1245 (4th Cir. 1995). “[V]iewing the evidence in
the light most favorable to the prosecution,” Jackson v.
Virginia, 443 U.S. 307, 319 (1979), the Intoximeter’s test
results show that Ahlstrom’s BrAC was well over the legal limit
of 0.08 grams of alcohol per 210 liters of breath, in violation
of 36 C.F.R. § 4.23(a)(2).
In passing, Ahlstrom also asserts that the district court
erred in relying on the magistrate judge’s report, filed
pursuant to Fed. R. Civ. P. 58(g), which stated: “Officer
Gillespie testified that the breath machine was properly
maintained, in good working order, and designed to disable
itself if its internal diagnostic tests showed any malfunction.”
App. Br. at 19-20. Even accepting, arguendo, appellant’s
contention that the report was inaccurate, we have independently
concluded that the Intoximeter test results were admissible and
sufficient to support the conviction.
III.
For the foregoing reasons, we affirm.
AFFIRMED
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