United States of America, Plaintiff-appellee, v. Eugene Allen Davis, Defendant-appellant, 13 F.3d 407 (10th Cir. 1993)

ORDER AND JUDGMENT¹ 

Defendant Eugene Allen Davis was convicted of driving on a suspended driver's license, Kan. Stat. Ann. 8-262; 18 U.S.C. 13, and driving under the influence of alcohol, Kan. Stat. Ann. 8-1567(a) (2); 18 U.S.C. 13, on the grounds of Fort Riley, Kansas. Defendant appeals his conviction for driving under the influence of alcohol. We have jurisdiction pursuant to 28 U.S.C. 1291.

Prior to trial, Defendant filed a motion to suppress all evidence relating to a breath test. After a hearing, the district court denied the motion. Defendant went to trial and was convicted on both counts. On appeal, Defendant claims that the court erred in admitting the results of the breath test obtained with Defendant's consent, because that consent was based on inaccurate statements concerning Defendant's obligation to provide a breath sample for analysis.

We review the district court's factual findings for clear error. United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir. 1993). The ultimate issue of whether an arrest occurred is a question of law which we review de novo. United States v. Bloom, 975 F.2d 1447, 1450 (10th Cir. 1992). Defendant and the attorneys are familiar with the facts of this case and they need not be recited here. We have read the briefs, heard oral argument, and reviewed the record before us. We conclude that the district court's factual findings in support of its conclusion that Defendant was under arrest for driving under the influence of alcohol prior to his consent to the breath test were not clearly erroneous. We further conclude that the court's ultimate conclusion that an arrest for driving under the influence occurred was correct.

AFFIRMED.