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United States v. Rowe

United States Court of Appeals, Fourth Circuit
Jun 20, 1979
599 F.2d 1319 (4th Cir. 1979)
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Summary

holding that penalty for refusing a breathalyzer test is civil under Virginia law and thus cannot be enforced under the Assimilative Crimes Act

Summary of this case from U.S. v. Stewart
See 4 Summaries

Opinion

No. 78-5183.

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.

Appeal from the United States District Court for the Eastern District of Virginia.

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.

We therefore affirm the conviction of driving while under the influence of alcohol and reverse the conviction on the breathalyzer charge.

Summaries of

United States v. Rowe

United States Court of Appeals, Fourth Circuit
Jun 20, 1979
599 F.2d 1319 (4th Cir. 1979)

holding that penalty for refusing a breathalyzer test is civil under Virginia law and thus cannot be enforced under the Assimilative Crimes Act

Summary of this case from U.S. v. Stewart

In United States v. Rowe, 599 F.2d 1319 (4th Cir. 1979), the appellant asserted that his refusal to take a breathalyzer could not be prosecuted under the ACA because under Virginia caselaw it was a civil, and not a criminal, offense.

Summary of this case from U.S. v. Smith

In United States v. Rowe, 599 F.2d 1319 (4th Cir. 1979), the Fourth Circuit reversed the district court's conviction of a defendant under Virginia's implied consent law and the ACA. The court held that the Virginia Supreme Court's determination that Virginia's implied consent statute was civil and not criminal was binding upon the federal court.

Summary of this case from United States v. Hollinshead

In U.S. v. Rowe, 599 F.2d 1319 (4 Cir. 1979), the Fourth Circuit held that a Virginia law allowing suspension of a driver's license because of refusal to submit to a breathalyzer test had not been assimilated into federal law because 18 U.S.C. § 13 incorporates only the criminal laws of the jurisdiction within which the federal enclave exists.

Summary of this case from AGO
Case details for

United States v. Rowe

Case Details

Full title:UNITED STATES OF AMERICA, APPELLEE v. JAMES M. ROWE, APPELLANT

Court:United States Court of Appeals, Fourth Circuit

Date published: Jun 20, 1979

Citations

599 F.2d 1319 (4th Cir. 1979)

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