United States v. Turner ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5606
PAUL E. TURNER, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Robert G. Doumar, District Judge.
(CR-95-14)
Submitted: February 7, 1996
Decided: February 29, 1996
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Paul Elton Turner, Jr., Appellant Pro Se. Donald Paul DiCarlo, Jr.,
UNITED STATES ARMY, Fort Monroe, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Paul Turner appeals from a district court order affirming the con-
viction, after a jury trial before a magistrate judge of driving under the
influence, second offense, and refusal to submit to an alcohol test. See
18 U.S.C.A. §§ 13, 3118 (West Supp. 1995); Va. Code Ann. § 18.2-
270 (Michie Supp. 1995). He attacks the conviction on several
grounds. When a defendant challenges the sufficiency of the evidence
for which he was convicted, this court reviews the evidence in the
light most favorable to the government and determines if any reason-
able jury could have reached the verdict at issue. United States v. Fiel,
35 F.3d 997, 1003 (4th Cir. 1994), cert. denied , ___ U.S. ___, 63
U.S.L.W. 3627 (U.S. Feb. 21, 1995) (No. 94-7544). Because our
review of the record reveals no reversible error, we affirm.
Turner alleges that the trial court erred in denying his motion to
dismiss because reasonable suspicion did not exist to warrant his
detention to perform field sobriety tests. Military police stopped Tur-
ner and his vehicle at the front gates of Fort Monroe at 2:15 a.m. at
a check point blockade. The evidence demonstrating that Turner's
breath smelled like alcohol, as observed by an officer trained in DUI
detection, and that it was 2:15 in the morning and Turner intended to
drive onto the base to visit a hotel, is enough to establish reasonable
suspicion.
Turner next alleges that there was no evidence demonstrating that
his ability to drive was impaired. It was reasonable for the jury to
infer that Turner's ability was impaired, although the military police
did not observe erratic driving, because he failed two of three field
sobriety tests, refused to take another field sobriety test or a blood or
breath alcohol test, his eyes were red and bloodshot, his movements
and speech were exaggerated, slow, and unsure, he was generally
uncooperative, and would not follow directions.
Turner next alleges that admitting a prior DUI conviction record
was error and did not establish a second offense. Turner, however,
stipulated to the conviction at trial, and the trial transcript shows that
the stipulation was intended to show a prior similar conviction.
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Finally, Turner alleges that because he was not arrested, he should
have been acquitted of the refusal charge because the statute requires
that the refusal occur after arrest. 18 U.S.C.A.§ 3118. Because mili-
tary police detained Turner for a hour and a half, an officer involved
testified that there was an "arresting officer," and the military police
gave Turner summonses reflecting the charges before he was
released, Turner was under arrest for the purposes of the statute.
We therefore affirm the district court's order because a reasonable
jury could have reached the same verdict and the district court did not
abuse its discretion. United States v. Fiel, 35 F.3d 997, 1003 (4th Cir.
1994), cert. denied, ___ U.S. #6D6D 6D#, 63 U.S.L.W. 3627 (U.S. Feb. 21,
1995) (No. 94-7544). We deny Appellant's motion for oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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