Appeal from the Superior Court of the District of Columbia (T-5232-00) (Hon. Gerald I. Fisher, Trial Judge)
Before Wagner, Chief Judge, and Washington, Associate Judge, and
King, Senior Judge.
The opinion of the court was delivered by: Wagner, Chief Judge
Appellant, Amit Anand, was charged with driving under the influence (DUI), D.C. Code § 40-716 (b)(1) (1998) *fn1 , and operating a motor vehicle while impaired (OWI), D.C. Code § 40-716 (b)(2) (1998) *fn2 . In a bench trial, the trial court found him not guilty of DUI, but guilty of OWI. He argues for reversal on the grounds that: (1) the two statutes under which he was charged are not different in material respects, and therefore, an acquittal under one, requires an acquittal under the other; and (2) the OWI statute is unconstitutionally vague. We affirm.
At trial, Metropolitan Police Officer Francina Tensley testified that she was working at a sobriety check point on August 27, 2000 when she made a random stop of Anand's vehicle. She testified that once Anand rolled down the window, she smelled a strong odor of alcohol, and she noticed a beer bottle in the side door when he stepped out of the vehicle. According to the officer, Anand admitted that he had several beers. He was given, but unable to perform a straight line walking test (heel-to-toe for nine steps and back). Officer Tensley testified that Anand was physically impaired and drunk in her opinion. Officer Heath Tucker, who gave Anand the "heel-to-toe" walking test, testified that Anand swayed during the test and was unable to keep heel-to-toe. Officer Tucker also testified that he noticed that Anand's eyes were red and watery and, in his opinion, Anand was drunk. Anand refused to be tested for alcohol on a breath machine.
Michael Menefee testified that he was with Anand at a restaurant between 11:30 p.m. to 2:00 a.m., shortly before Anand was arrested. He testified that he was absolutely sure that Anand had only three beers that night and that Anand showed no signs of intoxication when he left the restaurant shortly after 2:00 a.m. Anand also testified that he had only three beers that night and that he was not under the influence of alcohol when the police stopped him.
The trial court credited Officer Tucker's testimony in its entirety, and credited Officer Tensley's testimony in most respects, including testimony that Anand admitted to her that he had several beers. *fn3 In concluding that the government had proven beyond a reasonable doubt that Anand was driving while impaired, the trial court referenced specifically the officers' observations of Anand's condition that night, as above-described, and found significant that Anand had refused to take an Intoxilizer test even though he was informed that refusal could result in revocation of his driver's privileges and could be used in court as evidence against him. The trial court found, under the circumstances, that Anand's refusal to take the test showed consciousness of guilt.
Having a reasonable doubt of Anand's guilt of the charge of driving under the influence, the trial court found Anand not guilty of that offense. However, with respect to driving while impaired, the court found the government's evidence against Anand convincing beyond a reasonable doubt. In making its final ruling, the court observed a difference between the two charges as follows:
[T]o show driving under the influence, you have to show that a person is impaired to an appreciable degree. But to show that somebody is operating while impaired, it doesn't have to be to an appreciable degree, just has to be impaired at some level. Doesn't have to be excessively impaired, and I find that his ability to drive in this case was impaired, and I find him guilty of that charge.
Anand argues that he cannot be found not guilty of driving under the influence (DUI), but guilty of driving while impaired (OWI) under our statutory scheme. He contends that the proof for each of the two offenses is identical and that there is no difference in terms of the definition of the crimes shown by the statutes or the ...