United States of America, Plaintiff-appellee, v. Patricia Roberts, Defendant-appellant.united States of America, Plaintiff-appellee, v. Alfred L. Hoskins, Defendant-appellant, 845 F.2d 226 (9th Cir. 1988)

Patricia Roberts and Alfred Hoskins appeal convictions for driving a vehicle with a blood alcohol content above .10 percent, in violation of California law. Hoskins also appeals his conviction for driving under the influence of alcohol.¹  Each was arrested while driving on the Long Beach Naval Station in Long Beach, California. The prosecutions were under the Assimilative Crimes Act, 18 U.S.C. § 13 (1982).² 

We must decide whether California's implied consent law provisions, Cal.Veh.Code Secs. 23157 (West 1985) and 23157.5 (Supp.1985),³  are assimilated pursuant to the Assimilative Crimes Act in a federal prosecution for driving while intoxicated on a federal enclave in the state of California. We conclude that they are not and affirm.

BACKGROUND

Roberts was stopped on September 14, 1985, while driving into the Long Beach Naval Station. A guard noticed an open beer can on the front seat of her car and arrested her on suspicion of drunk driving. Roberts admitted consuming three drinks. She refused to submit to a field sobriety test. She was then taken to another part of the Station, where she submitted to breathalyzer tests. She had blood alcohol readings of .18 and .20 percent.

Hoskins was stopped on September 20, 1985, when he was seen driving erratically on the Long Beach Naval Station by Station police. His eyes were bloodshot and he reeked of an alcoholic beverage. He failed five field sobriety tests. He submitted to a breathalyzer test and had a blood alcohol reading of .22 percent.

Before submitting to a breathalyzer test, both Roberts and Hoskins were presented with a "Blood Alcohol Test Consent Form," which stated that under state law provisions failure to submit to a breathalyzer test would result in a six months driver's license suspension. Both were required to sign the form and take a breathalyzer test. Neither was given a choice of taking a blood or a urine test; neither was advised that a breath sample would not be retained for later verification of the breathalyzer test results.

California's implied consent law provides that a motor vehicle driver is deemed to have given consent to chemical testing of his blood, breath or urine for determining blood alcohol content. Cal.Veh.Code Sec. 23157(a) (1). Failure to submit to such a test is punishable by fines, suspension of driving privileges, and imprisonment. Id. The statute further provides that drivers shall be given a choice of testing either their blood, breath or urine. Cal.Veh.Code Sec. 23157(a) (2) (A). In addition, Cal.Veh.Code Sec. 23157.5 provides that a person who chooses a breath test must be advised that no breath sample will be retained for later verification of the test results, although failure to so advise will not affect the admissibility of test results. These procedures were admittedly not followed.

The defendants were tried separately before a federal magistrate. Each filed a motion to suppress the breathalyzer test results; in each case the motion was denied. Both defendants were convicted. They appealed their convictions to the district court, where the appeals were consolidated. The district court determined that California's implied consent law provisions are not assimilated in a federal prosecution, and affirmed the judgments of conviction.

ASSIMILATION OF IMPLIED CONSENT LAW PROVISIONS

Roberts and Hoskins argue that the Assimilative Crimes Act incorporates California's implied consent law provisions, including the provisions which require authorities to give suspects a choice of a blood, breath or urine test and to advise suspects that a breath sample will not be retained. This issue presents a question of law, which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984).

The purpose of the Assimilative Crimes Act is to conform the criminal law of federal enclaves to that of local law unless specific federal crimes have been enumerated. United States v. Best, 573 F.2d 1095, 1098 (9th Cir. 1978). However, "only those California statutes making drunk driving a criminal offense and authorizing punishment therefor are assimilated into federal law under the [Assimilative Crimes] Act." Id. at 1098. See also United States v. Sain, 795 F.2d 888, 890 (10th Cir. 1986) (federal courts are not required to follow provisions of state law which go beyond establishing the elements of an offense and the range of punishment). In Best this court reversed a magistrate's order suspending a motorist's driver's license after the motorist pleaded guilty to driving under the influence of alcohol on a federal enclave. Id. at 1103. We held that a driver's license suspension is not "punishment" under California law and thus the magistrate's order suspending the motorist's license could not be supported under the Assimilative Crimes Act on the basis of California law. Id. at 1100. Under the Best analysis the implied consent law provisions are not assimilated into federal law, since they neither make drunk driving a criminal offense nor authorize punishment for drunk driving. See United States v. Rowe, 599 F.2d 1319, 1320 (4th Cir. 1979) (per curiam) (conviction under Virginia law for refusal to take a breathalyzer test reversed, since such a proceeding is civil and administrative, not criminal).

In United States v. Wilmer, 799 F.2d 495, 500 (9th Cir. 1986), cert. denied, --- U.S. ----, 107 S. Ct. 1626, 95 L. Ed. 2d 200 (1987), we held that federal procedural rules, not state procedural rules, apply in prosecutions under the Assimilative Crimes Act. Wilmer challenged the admissibility of a report relating to the calibration of a breathalyzer machine, asserting that, under federal law, the report's author had to be present to testify. The government relied on a state procedural rule requiring that defendants make a written demand seven days before trial for the production of the maintenance officer who had calibrated the breathalyzer. The district court applied the state rule and did not require the maintenance officer's testimony. Id. We held that the district court erred, because the Assimilative Crimes Act does not require the adoption of state procedural rules. Id.

California's implied consent law provisions are similarly regulatory and procedural and therefore are not assimilated under the Assimilative Crimes Act. Moreover, we note that even if they were assimilated, the failure to advise a suspect that the breathalyzer does not retain a sample would not affect the admissibility of the breathalyzer's results under California law. Cal.Veh.Code Sec. 23157.5(d); In re Cheryl S., 189 Cal. App. 3d 1240, 235 Cal. Rptr. 42 (1987) (no due process concerns are implicated when the state fails to preserve nonexculpatory breath samples for independent testing; accordingly, there is no constitutional duty to advise suspect that breath samples are not preservable).

CONSTITUTIONAL CHALLENGES

On appeal the defendants raise due process and equal protection challenges to the procedures followed by the Naval Station police. These constitutional challenges were not raised before the magistrate or the district court, and are, therefore, not subject to review. United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1593, 80 L. Ed. 2d 125 (1984).

SUFFICIENCY OF THE EVIDENCE

Both defendants failed to move for judgment of acquittal pursuant to Rule 29, Fed. R. Crim. P. Neither, therefore, is entitled to challenge the sufficiency of the evidence on appeal. United States v. Czaplicki, 446 F.2d 640, 640 (9th Cir. 1971) (per curiam).

AFFIRMED.