United States v. Lora French

FILED
NOT FOR PUBLICATION FEB 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-15113
Plaintiff - Appellee, D.C. No. 2:10-cv-01072-RLH-
LRL
v.
LORA A. FRENCH, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Submitted February 13, 2012 **
San Francisco, California
Before: GRABER, BERZON, and TALLMAN, Circuit Judges.
Lora French appeals her conviction for operating a motor vehicle while
under the influence of alcohol in the Lake Mead National Recreation Area, in
violation of 36 C.F.R. § 4.23(a)(1) and 16 U.S.C. § 3. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. The district court held that National Park Service Ranger Fletcher Ogg
was credible in recounting his observation that French drove through an
intersection without stopping at a stop sign. Ogg therefore had reasonable
suspicion to stop French. See United States v. Lopez-Soto, 205 F.3d 1101, 1105
(9th Cir. 2000).
That French was acquitted of the crime of failing to obey a traffic control
device does not affect this conclusion. The district court properly applied a
different standard of proof to the conviction, holding that the testimony of French’s
husband was sufficient to create a reasonable doubt as to whether she actually
failed to stop at the stop sign, see 36 C.F.R. § 4.12 (failure to obey a traffic control
device), but not sufficient to impeach Ranger Ogg’s testimony as to what he
perceived at the time.
2. The district court did not err in admitting evidence of the preliminary and
evidentiary breath tests.
The preliminary breath test was properly admitted; the fact that the machine
was not calibrated once a month, as required by Nevada regulations, Nev. Admin.
Code § 484.621, does not render the test results inadmissible in federal court. See
United States v. Becerra-Garcia, 397 F.3d 1167, 1173 (9th Cir. 2005). Testimony
introduced at trial laid an adequate foundation for the admission of that test.
Witnesses indicated that the particular device in question was calibrated yearly and
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was found to be working properly both before and after the night of the stop. We
also note, without expressing a view as to whether doing so would be improper,
that the district court did not use the results of the preliminary breath test as
substantive evidence supporting French’s conviction.
The district court also did not err in considering the results of the evidentiary
breath test as substantive evidence of French’s conviction. Although such
evidence is not admissible to show a particular amount of alcohol in the blood
without expert evidence relating it back to the time of the stop, it can be used to
show that a defendant has been drinking. United States v. Stanton, 501 F.3d 1093,
1096 (9th Cir. 2007).
3. Sufficient evidence existed to support French’s conviction. See Jackson
v. Virginia, 443 U.S. 307 (1979) (stating standard). Ranger Ogg observed that
French had bloodshot and watery eyes, slurred her speech, smelled of alcohol, and
seemed agitated and upset. French was unable to follow instructions while
performing the horizontal gaze nystagmus test and was unable to complete the
walk and turn test and the one leg stand test. The evidentiary breath test showed
that French’s blood alcohol content was nearly twice the legal limit 90 minutes
after she was pulled over.
AFFIRMED.
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