Appeal from the Superior Court of the District of Columbia (T-3670-05) (Hon. John H. Bayly, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Submitted February 7, 2008
Before REID and KRAMER, Associate Judges, and SCHWELB, Senior Judge.
After a bench trial, appellant, Sean E. Thomas, was found guilty of driving under the influence of a drug (marijuana), in violation of D.C. Code § 50-2201.05 (b)(1)(A)(i)(II) (2001). We affirm.
At approximately 7:20 a.m. on July 2, 2005, Officer Candace Drake of the Uniformed Division of the United States Secret Service, was standing outside of her police vehicle at the intersection of 17th and H Streets in the northwest sector of the District of Columbia, when she noticed a woman yelling out of a car stopped at the traffic light.The woman was yelling, "[H]elp me; he has a gun and drugs in the car . . . ." Officer Drake radioed for help, and Officer James Livingston responded to the scene. The two approached the vehicle. Officer Livingston asked Mr. Thomas, seated in the driver's seat, to exit the vehicle. Officer Drake instructed the female passenger, who repeatedly said Mr. Thomas had been drinking and doing drugs, to also get out of the car. Both officers noticed an open Hennessy bottle in the car, ashes in the ashtray, and something that looked like a "joint" with a "leafy, brown-green type substance in it." The joint appeared to have been used. Officer Drake did not smell drugs in the vehicle, but another officer who arrived at the scene said that the vehicle "smell[ed] as if somebody had been smoking in [it]," though he could not discern whether a cigar, cigarette, or marijuana had been smoked. In a subsequent search of the car, ziplock bags containing a leafy, green substance were found. Tests revealed that the substance was marijuana.
Officers Livingston and Drake also noticed odd aspects about Mr. Thomas's condition and behavior. His eyes were bloodshot and glassy. He was sweating profusely, so much so that his clothes were soiled. The amount of sweat was unusual given that the day was not hot or humid. Officer Livingston said Mr. Thomas was perspiring at a rate "consistent with somebody that ran several miles." Mr. Thomas also "did not respond immediately to things" and had to use the door to maintain his balance when he exited the car. And, according to Officer Livingston, his breath smelled of alcohol.
Officer Livingston, who had forty hours of training in field sobriety testing, administered three field sobriety tests, all of which indicated impairment. Only one of these tests, however, was capable of indicating whether Mr. Thomas was under the influence of a drug.*fn1 Based on his observations and the test results, Officer Livingston concluded that Mr. Thomas was under the influence of alcohol or drugs. Officer Drake, who was trained to identify the symptoms of drug use, made the same determination based on Mr. Thomas's appearance.
After Mr. Thomas was arrested, he was transported to the Office of the United States Capitol Police for a breathalyzer exam and a urinalysis. Two breathalyzer exams indicated that the level of alcohol in Mr. Thomas's blood was zero. Once those tests were completed, the Capitol Police technician attempted to administer the urinalysis, but Mr. Thomas refused to take the exam. He told Officer Livingston, who had been observing the testing, "You got me." Officer Livingston asked, "What do you mean by that?" The officer pressed further, saying, "Well, what do you mean we got you, . . . are the . . . narcotics or drugs in the car yours?" Mr. Thomas did not respond.
At trial, during the direct examination of Officer Drake, the prosecution attempted to introduce a copy of the Implied Consent Act and the breathalyzer ticket, which showed that Mr. Thomas refused to undergo the urinalysis. The defense objected on the grounds that the documents were hearsay and that they were cumulative, since Officer Livingston had already testified regarding Mr. Thomas's refusal to take the test. The court found the documents were admissible under District law, and, consequently, overruled the objection.
Two days after refusing to undergo the urine test, Mr. Thomas agreed to take it. The urinalysis did not reveal the presence of cocaine, opiates, or PCP in his body. The test was not designed to detect marijuana.
Based on Mr. Thomas's appearance and behavior and the presence of marijuana in the car, the trial court found that Mr. Thomas was driving under the influence of marijuana.
Mr. Thomas argues that the trial court improperly denied his motion for judgment of acquittal because there was insufficient evidence to allow a reasonable fact finder to conclude beyond a reasonable ...