Opinion
No. CR 97-0855-TUC-JMR (JCG).
September 23, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN M. ROLL, U.S. DISTRICT JUDGE:
Pending before the Court is the Government's Petition for Adverse Modification of Supervised Released Conditions. The Government wishes to impose additional special conditions of supervised release prohibiting the consumption of alcohol and providing for substance abuse treatment. The matter was referred to a Magistrate Judge for the purpose of conducting a hearing and preparing a report and recommendation. The hearing was conducted on September 21, 2005, and the Defendant, who was represented by counsel, presented a witness and testified himself. The government called the assigned Probation Officer as its only witness.
The Defendant was convicted following a plea of guilty to the charge of conspiracy to possess marijuana with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and § 846. Defendant was sentenced March 4, 1999, consistent with the terms of the plea agreement, to the statutory minimum term of five years and a supervised release term of four years. Defendant's conditions of supervised release included the standard condition that "he refrain from excessive use of alcohol."
It is the Probation Officer's position that Defendant excessively used alcohol and that his supervised release conditions should be modified to prohibit all consumption of alcohol and that Defendant should submit to substance abuse treatment. The Government has not moved to revoke Defendant's supervised release based upon an allegation that he violated the condition against excessive use of alcohol. Instead, the Government seeks a modification of Defendant's conditions of supervised release.
Probation Officer Denise Ahl testified that she believed that Defendant's use of alcohol was excessive because Breathalyzer tests on two separate home visits showed Defendant with a blood alcohol level above the State of Arizona legal limit for driving under the influence of alcohol, which is a blood alcohol level of .08 percent or above. On March 24, 2004, Defendant's blood alcohol level was .084 and on June 28, 2005, two tests produced successive results of .113 and .10.
The Probation Officer testified that she explained to the Defendant at the commencement of her supervision that she would consider any alcohol use that resulted in a blood alcohol level above the state limit to be excessive use. The Defendant testified that he does not recall the Probation Officer saying this and that at his sentencing he asked his defense lawyer what the no "excessive use" condition meant and the lawyer told him that it meant that he was not to get drunk and get into trouble. The Probation Officer also testified that during other home visits the Defendant did not test above the legal limit.
The Court notes that the March 24, 2004 test bearing a result of .084 is within the calibration error of the Breathalyzer. Probation Officer Ahl testified that the Breathalyzer is calibrated to 0.05 and thus a test result of .084 could, given the margin of error, be within the legal limit. The June 28, 2005 test results of .113 and .10 are plainly above the legal limit for operation of a motor vehicle in the State of Arizona. Defense counsel argued that such a limit is irrelevant given that there is no evidence or suggestion that Mr. Peterson was operating a motor vehicle at the time he was drinking. Mr. Peterson testified that he had drunk three beers immediately before the June 28 test, that it was at the end of a hard day of work, that it was hot and that he was in the process of consuming the third beer when he was tested. He believed this accounted for the positive blood alcohol level. He testified, however, that he did not feel "tipsy" or "intoxicated." Mr. Peterson testified that he "sometimes drinks every day." He further testified that he believes drinking two to three beers a day makes him feel better and helps him sleep. His medical records from a visit to the Veterans Administration Hospital in August 2004 contain conflicting information about Mr. Peterson's daily consumption of alcohol. One notation states that he consumes 12 beers a week and another states 2-6 beers a day. Mr. Peterson testified that he believes he informed his health care provider that he drinks 2-3 beers per day. Mr. Peterson denied ever drinking anything other than beer. He also denied ever being intoxicated since the time that he was first in the Navy shortly after graduating from high school. It is undisputed that Mr. Peterson has a previous 1976 conviction for driving under the influence.
Defendant called Jack Egan as a witness. Mr. Egan, a retired career guidance counselor from San Manuel High School, has known the Defendant for more than twenty years. Defendant has worked for Mr. Egan on jobs around his home in the past and is presently engaged in a project remodeling a bathroom in Mr. Egan's home. Mr. Egan testified that he himself drinks occasionally — that he has had 2-3 beers this summer, that he has drunk beer with Mr. Peterson at the end of a work day, but that he has never seen Mr. Peterson intoxicated nor has he ever heard from anyone in their community of Oracle, Arizona that Mr. Peterson was intoxicated. Mr. Egan recounted a time when he invited Mr. Peterson to dinner but Mr. Peterson declined the invitation because he said that he had a few beers and did not want to drive over to Mr. Egan's house (which is a few miles away).
Indeed there was no testimony from any witness that, during his term of supervised release, Mr. Paterson's drinking has ever adversely affected the activity he was engaged in at the time of his drinking (the Court has no question about the propriety of the state legal limit with respect to deeming that an impairment exists from having a blood alcohol percentage above the legal limit for the purpose of operating a motor vehicle but this Defendant was never engaged in the operation of a vehicle when he tested above the legal limit). The probation officer did not recall or have any documented record of Mr. Peterson demonstrating an impairment. He never stumbled, slurred his words or was belligerent. She did recall that there seemed to be a lot of beer cans in the trash and around his yard and that on one occasion his refrigerator contained two cases of beer.
Defense counsel argued that the state limit for driving under the influence should not be used as a basis for a determination of excessive use for two reasons. First, drinking which produces an impairment for the purpose of driving a vehicle may not be excessive for other purposes. Second, counsel made a due process argument that the "excessive use" condition as defined by the Probation Officer was an ambiguous standard and that no individual could know whether he had violated this standard without testing equipment.
The Court agrees with counsel's first point, that what is excessive use for the operation of a motor vehicle is not necessarily "excessive use" for other activities. In light of the absence of any testimony or evidence that Mr. Peterson's conduct was adversely affected by his alcohol consumption, the Court cannot deem that his use is excessive.
The Government presents a second argument for the modification it proposes. It contends that Mr. Peterson's consumption of alcohol impairs his ability to satisfy his standard condition that he "work regularly at a lawful occupation." According to the Petition, Mr. Peterson has reduced his work hours because of his failing health. The Probation Officer contends that this failing health is due to Mr. Peterson's hepatitis infection. Medical records indicate that Mr. Peterson's health care providers state that they cannot treat his hepatitis unless he stops drinking. Thus, the Probation Officer's analysis is that a condition barring consumption of alcohol will allow Mr. Peterson to receive treatment, which will allow his health to improve such that he can fully satisfy his supervised release condition that he "regularly work." Mr. Peterson addressed this point in his testimony. It is his view that the impediment to treatment is his unwillingness to undergo a liver biopsy. He testified that he has refused such a procedure because of past negative experience with the health care he has received from the VA Hospital. Moreover, Mr. Peterson has some belief that his failing stamina may be due to a spot on his lungs. It is apparent that Mr. Peterson resists the "no alcohol" modification of his supervised release because he believes drinking 2-3 beers a day, after work, makes him feel better and helps him sleep.
When considering a modification of a Defendant's supervised release terms, 18 U.S.C. § 3583(e) directs the Court to consider the factors set forth in 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6) and (a)(7). A Court need not find that a condition is supported by all of these factors. Rather the Court is permitted to impose a condition of supervised release as long as the condition is reasonably related to one or more of these factors. United States v. Johnson, 998 F.2d 696, 697-98 (9th Cir. 1993). In considering these sentencing factors, this Court is guided by the fact that the sentencing judge did not impose the requested condition at the time of sentencing. The Court is further guided by the fact that there is no evidence that Defendant's present conduct poses an imminent threat to the public. Moreover, there is only the Government's speculation that if Defendant's health further deteriorates he will no longer be able to meet his expenses and that he will necessarily turn to illegal activity. In light of Defendant's record of compliance with his supervised release conditions in all other respects, this causation analysis is too attenuated to justify the imposition of conditions precluding Defendant from drinking any alcohol or commanding participation in substance abuse treatment. The Government has not established a reasonable relationship between the proposed additional conditions and either deterrence, public safety or rehabilitation. United States v. T.M., 330 F.3d 1235 (9th Cir. 2003).
IT IS THEREFORE RECOMMENDED the Petition for Adverse Modification of Supervised Released Conditions BE DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.