Appeal from the Superior Court of the District of Columbia (No. D-1415-05) (Hon. Stephen F. Eilperin, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID and GLICKMAN, Associate Judges, and BELSON, Senior Judge.
After a bench trial, the Superior Court found appellant Earl Reid guilty of possessing an open container of alcohol in a public place, a misdemeanor. Among other things, Reid contends that the government did not introduce sufficient evidence to demonstrate beyond a reasonable doubt that his drink contained at least one-half of one percent alcohol by volume, the definition of an "alcoholic beverage" under D.C. law. We agree and so reverse.
On May 26, 2005, Officer Andrew Zabavsky of the Metropolitan Police Department was on a routine bicycle patrol when he saw a group of people "hanging out in front of" a residence on Girard Street, Northwest. Zabavsky approached one of them, a man later identified as Reggie Crawford, who was holding "a green cup with little white cherries on it." Zabavsky asked Crawford what was in the cup; Crawford replied, "Oh, it's just a little alcohol. Sorry about that." Zabavsky took out his portable Roadside Breath Test (RBT). He did not, however, ask Crawford to breathe into the RBT. Instead, he held it over Crawford's drink and pressed the button on the unit to trigger a test for the presence there of alcohol fumes. The RBT indicated a positive result.
Zabavsky then turned to Reid, who was sitting against the building with a cup similar to Crawford's on the ground between his feet. Before the officer said anything, Reid volunteered, "Mine's just Kool-Aid." Apparently unwilling to trust that statement, Zabavsky picked up the cup, "tested it utilizing the RBT and obtained a reading of .352."*fn1 He also noticed that Reid "ha[d] the odor of alcohol on his breath," and that his "eyes were slightly red [and] bloodshot."
Reid was charged with possessing in an open container an alcoholic beverage in a public place in violation of D.C. Code § 25-1001 (a)(1) (2001).*fn2 At trial, Zabavsky was the only witness.
Over Reid's several objections, Zabavsky, an "alcohol certified" officer trained to perform field sobriety tests,*fn3 was permitted to testify that the RBT reading of .352 that he had obtained when he tested the liquid in Reid's cup indicated the presence of alcohol.
Zabavsky explained that the RBT is a device "used for a preliminary breath test . . . to determine whether to make an arrest or not" for driving while intoxicated. The device, he said, is shaped like a "small . . . box." It has a "little hole in the top" to insert a "little breath tube," into which a driving-while-intoxicated suspect blows. Once the suspect blows into the tube, the officer administering the test presses a button. "[T]he device actually has a little diaphragm in there and it kind of goes 'shoop' and it sucks up the air. And, based on the fuel cell that's inside the [RBT], it will determine the blood alcohol content from that sample," explained Zabavsky. If an intoxicated driver breathed into the RBT, Zabavsky testified, and it returned a reading of .125, that meant the driver had "a blood alcohol content of .125 [percent]."*fn4
Zabavsky said he also had used the RBT "[p]robably hundreds" of times in a different way -- to test for the presence of alcohol in containers. "Instead of using the breath tube," he would "just hold it up above the cup, push the button and it does the same thing, it kind of goes 'shoop' and sucks up the ambient air right above the liquid and it tells me that liquid has alcohol in it." Zabavsky acknowledged that he had not been trained to use the device in this way and could not explain the relationship between its reading and the concentration of alcohol in the tested container, except to say that, in his experience, any reading above .000 signaled the presence of "some type of alcohol," and the stronger the concentration of alcohol, the higher the reading would be. For example, he said, "Jack Daniel's and Coke [would] have a lower reading than if it was just straight Jack Daniel's." When testing beers, Zabavsky had obtained readings in the ".15 to, maybe, .25 range." With "some alcohols," he said, "you tend to get in the 345 range,"*fn5 while "grain alcohol . . . almost flips it over; it'll put [the RBT] at a .8, .9 range."
The trial court credited Zabavsky's testimony. It noted that he had used the RBT "hundreds of times" and had "significant training on its use . . . and the meaning of what registers on the device." Observing that .352 "is certainly far higher than .000," the court concluded that "the reading on the RBT device conclusively proves that [Reid's cup contained alcohol] beyond a reasonable doubt."
To be guilty of possessing an open container of alcohol in public, the substance the defendant possesses must meet the definition of an "alcoholic beverage" in D.C. Code § 25-101 (5) (2001): "'Alcoholic beverage' means a liquid or solid, patented or not, containing alcohol capable of being consumed by a human being. The term 'alcoholic beverage' shall not include a liquid or solid containing less than one-half of 1% of alcohol by volume." Reid failed to raise the issue below of whether the government had proved his drink had more than 0.5% alcohol by volume, and the trial court never mentioned that threshold. The government argues that we should apply a plain-error standard of review. If Reid were arguing that the trial court's judgment should be reversed for failing to make a finding on an element of the offense, we would. But his contention is that the evidence was insufficient to prove all of the elements of the offense beyond a reasonable doubt. Since he preserved his challenge to the sufficiency of the evidence by moving for a judgment ...