Submitted: November 18, 2014.
Appeal from the Superior Court of the District of Columbia. (CTF-18039-12). (Hon. Truman A. Morrison III, Trial Judge).
M. Kamionski was on the brief for appellant.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Rosalyn C. Groce, Deputy Solicitor General, and John J. Woykovsky, Assistant Attorney General, were on the brief for appellee.
Before GLICKMAN and MCLEESE, Associate Judges, and NEBEKER, Senior Judge.
Nebeker, Senior Judge.
Mr. Fadul appeals his conviction for driving under the influence of alcohol (DUI), in violation of D.C. Code § 50-2206.11 (2012 Repl.). He argues that the trial court abused its discretion in declining to sanction the government for its failure to provide him with tapes of the responding officers' radio call, that the evidence is insufficient to show that he " operat[ed]" or was " in physical control of" the vehicle within the meaning of the statute, D.C. Code § 50-2206.11 (2012 Repl.), and that the statute is unconstitutionally vague. We disagree, and affirm.
I. Facts and Procedural History
On October 4, 2012, police officers Loveday and Hyland discovered appellant Mohamed Fadul sleeping in the front seat of a parked car, with the engine idling. Observing significant evidence of intoxication, they " radioed for an alcohol-certified officer." When that officer -- Officer Carter -- arrived, he administered three field sobriety tests, all of which Mr. Fadul failed. Mr. Fadul was placed under arrest. At the stationhouse, he voluntarily provided a urine sample that contained 0.22 grams of ethanol per 100 milliliters of urine. He was initially charged with DUI and operating while impaired (OWI), but the government dismissed the OWI charge on the day of trial.
During trial and pre-trial proceedings, the government produced two recordings of police radio transmissions and delivered them to Mr. Fadul's defense counsel. Defense counsel stated that she " went to the Government's office to listen to the radio run; however, I never heard any radio run call asking for an alcohol-certified officer," later adding that she only heard " I have a DUI arrest." Concerned that the non-production of this information might violate the Jencks Act, the trial court questioned the prosecuting attorney about the circumstances, and questioned Officer Carter about whether " people told [him] anything about the facts of the case at the scene" when he was summoned as an alcohol-certified officer, to which Officer Carter responded that he did not " have a memory of that." Mr. Carter also testified that he did not recall a ...