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  • United States v. James M. Rowe, 599 F.2d 1319, 4th Cir. (1979)

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    James M. Rowe was convicted under the Assimilative Crimes Act of driving while under the influence of alcohol and refusing to take a breathalyzer test, which occurred on the Norfolk Naval Station, a federal enclave. The Fourth Circuit affirmed the conviction for driving under the influence but reversed the conviction for refusing the breathalyzer test. The court determined that under Virginia law, refusing a breathalyzer test results in an administrative/civil proceeding to suspend a driver's license rather than a criminal proceeding, so it cannot be prosecuted under the Assimilative Crimes Act, which only incorporates state criminal law into federal law for offenses on federal enclaves.

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    Filed: 1979-06-20 Precedential Status: Precedential Citations: 599 F.2d 1319 Docket: 78-5183

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    James M. Rowe was convicted under the Assimilative Crimes Act of driving while under the influence of alcohol and refusing to take a breathalyzer test, which occurred on the Norfolk Naval Station, a federal enclave. The Fourth Circuit affirmed the conviction for driving under the influence but reversed the conviction for refusing the breathalyzer test. The court determined that under Virginia law, refusing a breathalyzer test results in an administrative/civil proceeding to suspend a driver's license rather than a criminal proceeding, so it cannot be prosecuted under the Assimilative Crimes Act, which only incorporates state criminal law into federal law for offenses on federal enclaves.

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    United States v. James M. Rowe, 599 F.2d 1319, 4th Cir. (1979)

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    James M. Rowe was convicted under the Assimilative Crimes Act of driving while under the influence of alcohol and refusing to take a breathalyzer test, which occurred on the Norfolk Naval Station, a federal enclave. The Fourth Circuit affirmed the conviction for driving under the influence but reversed the conviction for refusing the breathalyzer test. The court determined that under Virginia law, refusing a breathalyzer test results in an administrative/civil proceeding to suspend a driver's license rather than a criminal proceeding, so it cannot be prosecuted under the Assimilative Crimes Act, which only incorporates state criminal law into federal law for offenses on federal enclaves.

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    of 2

    599 F.

    2d 1319

    UNITED STATES of America, Appellee,


    v.
    James M. ROWE, Appellant.
    No. 78-5183.

    United States Court of Appeals,


    Fourth Circuit.
    Argued June 7, 1979.
    Decided June 20, 1979.

    William T. Mason, Jr., Norfolk, Va. (Robinson, Eichler, Zaleski &


    Mason, Norfolk, Va., on brief), for appellant.
    John F. Kane, Asst. U.S. Atty., Alexandria, Va. (William B. Cummings,
    U.S. Atty., Alexandria, Va., and Raymond A. Jackson, Asst. U.S. Atty.,
    Norfolk, Va., on brief), for appellee.
    Before BUTZNER, RUSSELL and HALL, Circuit Judges.
    PER CURIAM:

    James M. Rowe appeals his conviction under the Assimilative Crimes Act, 18
    U.S.C. 13, for driving while under the influence of alcohol and refusing to
    take a breathalyzer test in violation of Sections 18.2-266 and 18.2-268
    respectively of the Code of Virginia. The offenses occurred on the Norfolk
    Naval Station, a federal enclave.

    Upon consideration of the briefs, the record, and the arguments of the parties,
    we detect no reversible error in the conviction for driving under the influence of
    alcohol.

    We believe, however, that federal prosecution of the breathalyzer charge was


    improper. The Assimilative Crimes Act by its own terms incorporates into
    federal law only the criminal law of the jurisdiction within which the federal
    enclave exists. United States v. Best, 573 F.2d 1095, 1098 (9th Cir. 1978). The

    Supreme Court of Virginia has held that a proceeding under Virginia Code
    18.2-268 to suspend a driver's license because of his refusal to submit to a
    blood test is administrative and civil, not criminal, in nature. Deaner v.
    Commonwealth, 210 Va. 285, 287-93, 170 S.E.2d 199 (1969). We, of course,
    must accept this authoritative interpretation of Virginia law. Accordingly, this
    offense may not be prosecuted under the Assimilative Crimes Act. Cf. United
    States v. Best, 573 F.2d at 1098-1100.
    4

    We therefore affirm the conviction of driving while under the influence of


    alcohol and reverse the conviction on the breathalyzer charge.

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