United States v. Sauls (981 F. Supp. 909, 1997)

OPINION

ROSENBERG, United States Magistrate Judge.

Sean Sauls was charged by violation notices with several traffic offenses occurring at Aberdeen Proving Ground, Maryland, in the vicinity of Raritan Road, on July 17,1994. A complaint approved by the Court on October 5, 1994, was filed and superseded the violation notices issued on July 17,1994, except as to one of the charges. All of the pending charges are charged as violations of 18 U.S.C. § 13, the Assimilative Crimes Act. The assimilated offenses are driving while intoxicated, driving while under the influence of alcohol, driving while under the influence of drugs or a combination of drugs and alcohol, driving on a highway at a time when the defendant’s privilege to drive was suspended in the state of Virginia, and failing to display drivers license upon demand of a uniformed police officer, in violation of the Md.Code Ann., Trans. II, §§ 21-902(a), 21-902(b), 21-902(c), 16-303(f), and 16-112(c) (1992) respectively. Subsequently, the defendant executed a waiver of his right to trial, judgment, and sentencing before a United States District Judge as well as his right to a jury trial and consented to trial before a United States Magistrate Judge without a jury.

In connection with the traffic stop a breathalyzer test (used herein as a generic term) was administered to determine the alcoholic content of the defendant’s breath. In accordance with the general practice at Aberdeen Proving Ground, the military police purportedly utilized the procedures set forth in the Md.Code Ann.Trans. II, § 16-205.1 (1992) and Md.Code Ann., Cts. & Jud.Proc., §§ 10-302 through 10-305 (1995).

A motion to suppress evidence has been filed on behalf of the defendant attacking the admissibility of the chemical test, the breathalyzer result, as well as the admissibility of the presumptions that arise from the test result under Md.Code Ann., Cts. & Jud. Proe., § 10-307 (1995).

The defendant has raised the following issues concerning the chemical test: (1) the military police should have utilized the federal implied consent law under 18 U.S.C. § 3118 rather than the state procedure under Trans. II, § 16-205.1, (2) by utilizing the state procedure and not utilizing the federal procedure, the defendant was coerced into taking the chemical test and the test was not otherwise the result of a free and voluntary informed choice, (3) the test was not administered by a “qualified person” as required by Cts. & Jud.Proc. § 10-304; and therefore, the test result should not be received in evidence and (4) even if the test results are admissible at trial, the Maryland presumptions under Cts. & Jud.Proc. § 10-307 are not assimilated under the Assimilative Crimes Act as due to their evidentiary character, they are not subject to assimilation.

In the event the Court were to determine that the defendant is correct on issue No. 4, the Court, on its own, requested the parties to submit a supplemental memorandum as to whether the Court could take judicial notice that certain inferences could be drawn from the chemical test result concerning the defendant’s state of sobriety when the offenses are alleged to have occurred.

The Assimilative Crimes Act provides that conduct occurring on land under the special maritime and territorial jurisdiction of the United States which is not expressly prohibited by federal law is governed by the penal laws of the state where the land is located. 18 U.S.C. 13(a). The Assimilative Crimes Act assimilates the entire substantive law of the state, including laws relating to the elements or definition and scope of an offense and laws governing the manner in which an offense is to be punished. United States v. King, 824 F.2d 313, 315 (4th Cir.1987); United States v. Price, 812 F.2d 174, 175 (4th Cir.1987). Although the Assimilative Crimes Act assimilates state substantive law pertaining to the elements of an offense and its punishment, it does not generally adopt state procedures or rules of evidence. United States v. Wilmer, 799 F.2d 495 (9th Cir.1986), cert. denied. 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987); Kay v. United States, 255 F.2d 476, 479 (4th Cir.), cert. denied, 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958); United States v. Price, supra.

Both sides have taken the position that the federal implied consent statute applies to this case rather than Md.Code Ann. Trans. II, § 16-205.1. The Court agrees that the Maryland Statute establishes a procedural provision outside the ambit of the Assimilative Crimes Act. Accordingly, the military police were not required to follow the Maryland procedure and should have followed the procedure established by 18 U.S.C. § 3118. United States v. Roberts, 845 F.2d 226, 228-229 (9th Cir.1988), United States v. Rogers, 926 F.Supp. 1000 (D.Colo.1996), United States v. Hopp, 943 F.Supp. 1313 (D.Colo.1996).

Transportation § 16.205.1 in pertinent part provides:

(a)(2) Any person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in this state is deemed to have consented, subject to the provisions of § 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a test if the person should be detained on suspicion of driving or attempting to drive while intoxicated, while under the influence of alcohol, while so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while under the influence of a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title, (b) No compulsion to take chemical test; consequences of refusal. — (1) Except as provided in subsection (e) of this section, a person may not be compelled to take a test. However, the detaining officer shall advise the person that, on receipt of a sworn statement from the officer that the person was so charged and refused to take a test, or was tested and the result indicated an alcohol concentration of 0.10 or more, the Administration shall:

(I) In the case of a person licensed [or unlicensed] under this title:

1. For a test result indicating an alcohol concentration of 0.10 or more at the time of testing:

A. For a first offense, suspend the driver’s license [or driving privilege] for 45 days; or

B. For a second or subsequent offense, suspend the driver’s license [or driving privilege] for 90 days; or

2. For a test refusal:

A. For a first offense, suspend the driver’s license [or driving privilege] for 120 days; or

B. For a second or subsequent offense, suspend the driver’s license [or driving privilege] for 1 year.

The statute has been construed by the Maryland Court of Appeals as requiring an affirmative consent from the individual to be tested. State v. Loscomb, 291 Md. 424, 435 A.2d 764 (1981). Rather than being an implied consent statute, it has been described as an express consent statute. State v. Moon, 291 Md. 463, 492-493, 436 A.2d 420, 435 (1981), Davidson J. dissenting. Furthermore, Form DR-15 utilized by the State of Maryland and by the military police in this case specifically advises that, “you have the right to refuse to submit to the test”. Although Cts. & Jud. Proc. § 10-309(a)(2) indicates that a refusal to submit to a chemical test is admissible in evidence at trial, the Court of Appeals of Maryland has held that ordinarily the refusal is not admissible but may be admitted under some circumstances in connection with a collateral matter not related to the issue of guilt. Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991).

18 U.S.C. § 3118 provides:

(a) Consent — Whoever operates a motor vehicle in the special maritime and territorial jurisdiction of the United States consents, thereby, to a chemical test or tests of such person’s blood, breath, or urine, if arrested for any offense arising from such person’s driving while under the influence of a drug or alcohol in such jurisdiction. The test or tests shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving a motor vehicle upon the special maritime and territorial jurisdiction of the United States while under the influence of drugs or alcohol in violation of the laws of a State, territory, possession, or district.

(b) Effect of Refusal — whoever, having consented to a test or tests by reason of subsection (a), refuses to submit to such a test or tests, after having first been advised of the consequences of such a refusal, shall be denied the privilege of operating a motor vehicle upon the special maritime and territorial jurisdiction of the United States during the period of a year commencing on the date of arrest upon which such test or tests was refused, and such refusal may be admitted into evidence in any case arising from such person’s driving while under the influence of a drug or alcohol in such jurisdiction. Any person who operates a motor vehicle in the special maritime and territorial jurisdiction of the United States after having been denied such privilege under this subsection shall be treated for the purposes of any civil or criminal proceedings arising out of such operation as operating such vehicle without a license to do so.

The defendant contends that the use of the Maryland procedure rather than following the Federal procedure invalidates the chemical test administered to him. It is contended that he was unable to make a free, voluntary and informed choice whether to consent to the chemical test. Specifically, it is contended that he may have refused the test upon being informed that any suspension of driving privileges would have been limited to driving within the special maritime and territorial jurisdiction of the United States for a period of one year which, the defendant contends, is a less severe sanction than the suspension imposed by the State of Maryland even though the length of the suspension under Maryland law would be substantially less. If suspended from driving in the State of Maryland, it is likely that he would not be permitted to drive in any State in the United States while the MaryMnd suspension was in effect. Most States have laws similar to Maryland’s which prohibit an individual from driving whenever the individual’s privilege to drive is suspended by another State. See, Trans. II, § 16-303. Although it is debatable, the defendant may be correct in his contention that the Maryland administrative penalties are more severe than those imposed under the Federal statute. See, United States v. Imngren, 98 F.3d 811, 816 (4th Cir.1996).

On the other hand, the Court is satisfied that under the Federal statute, the defendant had no legal right to refuse to take the chemical test as a refusal is not a permissible choice. This Court respectfully disagrees with the conclusion to the contrary in United States v. Rogers, supra. Under the statute the request is directed to the person administering the test. It is not directed to the person arrested:

It is clear that an individual may be compelled to take a chemical test so long as there are reasonable grounds to believe that the person was driving a motor vehicle while under the influence of alcohol or drugs. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), United States v. Reid, 929 F.2d 990 (4th Cir.1991), See also, 36 C.F.R. § 4.23(c)(2). Of course, unreasonable physical violence in administering the test would likely not be sanctioned and would likely invalidate the test. See, South Dakota v. Neville, supra and Schmerber v. California, supra. See also, People v. Hanna, 223 Mich.App. 466, 567 N.W.2d 12, (1997, released Aug. 16, 1997), 61 CrL 1447 (8/20/97).

The problem of the drunk driver is one of the major issues facing our nation today. Although there may have been some improvement in the recent past in the reduction of fatalities caused by drunk drivers, the issue is one of major proportions. The Supreme Court in recognizing this problem stated:

The situation underlying this case — that of the drunk driver — occurs with tragic frequency on our Nation’s highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This court although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U.S. 432, 439, [77 S.Ct. 408, 412, 1 L.Ed.2d 448] (1957). (“The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield”); Tate v. Short, 401 U.S. 395, 401, [91 S.Ct. 668, 672, 28 L.Ed.2d 130] (1971) (BLACKMUN, J., concurring) (deploring “traffic irresponsibility and the frightful carnage it spews upon our highways”); Perez v. Campbell, 402 U.S. 637, 657, 672, [91 S.Ct. 1704, 1715, 1722, 29 L.Ed.2d 233] (1971) (BLACKMUN, J., concurring) (footnote omitted) (“The slaughter on the highways of this Nation exceeds the death toll of all our wars”); Mackey v. Montrym, 443 U.S. 1, 17-19, [99 S.Ct. 2612, 2620-2621, 61 L.Ed.2d 321] (1979) (recognizing the “compelling interest in highway safety”). South Dakota v. Neville, supra, at pp. 558-559 [103 S.Ct. at pp. 919-920].

See also, United States v. Reid, supra, 929 F.2d at p. 993.

Congress is acutely aware of the problem and has taken steps to encourage the states to modify their drunk driving laws in an effort to remedy the problem. For example a number of federal grants are contingent upon a state’s compliance with certain standards mandated by Congress. See, 23 U.S.C. §§ 408 and 410. As a result of the severity of the problem it is inconceivable that Congress in passing the federal implied consent statute intended to give an individual a legal right of refusal.

Although the defendant was misinformed concerning the applicability of the Maryland implied consent law, this mistake does not invalidate a test which the defendant did not have the right to refuse. Any error that occurred was harmless. The Court agrees with the position taken by the government on this issue.

It is without question that the defendant by his very act of operating a motor vehicle in the special territorial jurisdiction of the United States consented to the chemical test which was administered to him. Although he could have refused the test, he had no statutory right to do so, and the military police had no statutory obligation to advise him that he had a right to refuse. It is true that the defendant must be advised of the consequences of refusal if the government intends to enter the refusal into evidence at trial or suspend defendant’s driving privileges, however, there is no obligation to advise him he had a right to refuse. The question then is how was defendant harmed; how was he mislead or coerced into taking a test that the federal law required he take, such that his due process rights were violated.

Clearly, defendant’s due process rights were not violated. The reality is that he received more rights than those to which he was actually entitled. Most notably, the right to refuse the chemical test. Government’s reply pp. 7-8.

Under Maryland law, a breathalyzer test in connection with a prosecution for. driving while intoxicated or while under the influence must be administered by a “qualified person.” A qualified person is defined in Md. Code Ann., Cts. & Jud.Proc. § 10-304(a)(3) as,

a person who has received, training in the use .of the equipment in a training program approved by the toxicologist under the Postmortem Examiners Commission and who is either a police officer, a police employee, an employee of the office of the Chief Medical Examiner, or a person authorized by the toxicologist under the Postmortem Examiners Commission.

It is not contended that the person administering the breathalyzer test was not trained under the auspices of the State Toxicologist. It is contended that the individual ceased to be a “qualified person” because certain record keeping requirements and/or the manner in which the test was administered did not comply with the Regulations of the Toxicologist Postmortem Examiners Commission, State of Maryland. Although certain records may have been kept, the regulations of the toxicologist require that the test results and certain related information be recorded in an Alcohol Testing Program Log. This was not done. Furthermore, it is alleged that there was a failure to record the results of a simulation test prior to the defendant’s test or perhaps a simulation test was not performed at all although allegedly required by the regulations of the toxicologist.

If the person administering the breathalyzer test to the defendant did not keep records in the form required by the regulations of the toxicologist or if the individual did not perform a simulation test, such failures would not invalidate the individual’s status as a qualified person, and even if the individual had not been trained by the state toxicologist, this would not affect the admissibility of the test result in a Federal prosecution. As the defendant has correctly noted, the Assimilative Crimes Act does not assimilate state rules of procedure or evidence. Ordinarily, a failure to follow a particular prescribed procedure may go to the weight to be given the evidence rather than its admissibility. Of course, in some cases, a Court may find the procedure utilized to be so unreliable so as to preclude the evidence from being considered by the trier of fact. Whether the defendant can prove that the procedure utilized so infected the reliability of the test result so as to preclude its admission into evidence is a matter that may require an evidentiary hearing either during or prior to the trial of the case. In any event, all that has been alleged thus far are matters that go to the weight of the evidence and not to its admissibility.

In Federal prosecutions the admissibility of evidence is governed by Federal standards. See generally, Rule 26 of the Federal Rules of Criminal Procedure and the Federal Rules of Evidence for United States Courts and Magistrates. Any failure to comply with the regulations of the state toxicologist or any of the other state procedures does not affect the admissibility of the evidence. In determining its admissibility, the Court will apply the appropriate Federal standards. See, United States v. Roberts, 845 F.2d 226, 228-229 (9th Cir.1988); United States v. McMillan, 820 F.2d 251, 255 (8th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 234, 98 L.Ed.2d 193 (1987); United States v. Wilmer, 799 F.2d 495 (9th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987); United States v. Smith, 776 F.2d 892 (10th Cir.1985); United States v. Tyson, 829 F.Supp. 368, 371 (M.D.Ala. 1993); United States v. Farmer, 820 F.Supp. 259 (W.D.Va.1993). See also, United States v. Dreos, 156 F.Supp. 200, 208 (D.Md.1957).

The defense contends that the Court cannot utilize what is referred to as the statutory presumptions contained in Md. Code Ann., Cts. & JudJProc. § 10-307(d) and (e). Under these provisions, an alcohol concentration of 0.07 or more shall be prima facie evidence that the defendant was driving while under the influence of alcohol, and an alcohol concentration of 0.10 or more shall be prima facie evidence that the defendant was driving while intoxicated. It is contended that § 10-302 through § 10-309 are procedural and/or evidentiary in nature and thus are not assimilated under the Assimilative Crimes Act just as the Maryland implied consent law is not assimilated.

On the other hand, the Government contends that the statutory presumptions are admissible and are to be considered by the Court with all of the evidence to be presented at the trial in determining the defendant’s guilt or innocence. Kay v. United States, supra appears to be directly on point in support of the Government’s position. In Kay, the Fourth Circuit concluded that even though state rules of evidence were not assimilated, the statutory presumptions under the law of the Commonwealth of Virginia applied to a prosecution under the Assimilative Crimes Act for driving while under the influence of intoxicants. The Court noted that while the Virginia statute may be said to be largely procedural, it was a preliminary, pre-judicial procedure which may be employed only with the consent of the accused, designed for the protection of the accused, to insure the reliability of the report of the test and to protect the validity of the presumptions established by the Virginia statute. The Court held that the Virginia statute setting forth the presumptions,

supplied a new and more objective test and definition for an accused who consents to a blood analysis. The new test is designed to protect an accused whose faculties are not impaired, while withholding protection from one, who, under the sobering influence of an accident or arrest, is able temporarily to avoid the appearance of intoxication. As a new definition of the substantive offense, we conclude that it was adopted by the Assimilative Crimes Act of 1948.

Kay at p. 480.

The Court also noted in Kay that the presumption of driving under the influence was rebuttable, and that it was to be considered with all of the other evidence in the case.

Although Kay would appear to be dispositive, the defendant contends that the Courts of Maryland have clearly recognized that the presumptions set forth in § 10-307 are evidentiary in nature and thus should not be assimilated. In this connection, it is alleged that the Virginia statute in Kay was part and parcel of the statute defining the offense of driving while intoxicated. The relevant sections of the Virginia code were § 18-75 which prohibited the offense of driving while (intoxicated) under the influence of alcohol, § 18-75.1 which provided for a chemical analysis of a blood sample taken with the consent of the accused, § 18-75.2 directed the receipt in evidence of a certificate showing the result of the analysis and § 18-75.3 established certain presumptions which arose out of the finding of the alcoholic content of the sample. All of these provisions were contained in that portion of the Virginia code defining or describing crimes and offenses generally. Accordingly, the statutory presumptions were set forth in a closely related statute to that defining the offense. Conversely, the Maryland provisions are not set forth in that portion of the code that either define offenses generally or that specifically define traffic offenses. As noted above, the section in question is part of the Courts & Judicial Proceedings portion of the code and is set forth under Title 10. Evidence, Subtitle 3. Motor Vehicle Laws.

Under the law of the State of Maryland it is clear that Maryland considers the presumptions set forth in Cts. & Jud.Proc. § 10-307 as evidentiary in nature and would not be considered by any stretch of imagination as a redefinition of the offenses of driving while intoxicated or while under the influence. In State v. Loscomb, supra, 291 Md. at pp. 429-430, 435 A.2d at p. 767, in discussing the predecessor of what is now Cts. & Jud.Proc. §§ 10-302 to 10-309, the Court observed that,

Thus, Art. 35, § 100 had the broad purpose of establishing a rule of evidence applicable in prosecutions for the violation of any law concerning a person accused of driving while intoxicated or impaired.

It is also noteworthy that Art. 35 was the Evidence Article of the Maryland Code. Furthermore, the Court noted that these sections were to be read in pari materia with the implied consent statute, Trans. II 16-205.1 which, as discussed above, is purely procedural. In addition, the Court of Appeals of Maryland in discussing Art. 35 § 100 stated,

Since this statute deals with a matter of evidence, we think that it may properly be considered in reviewing a case tried after its enactment, even though the accident here involved occurred prior thereto.

Alston v. Forsythe, 226 Md. 121, 132-133, 172 A.2d 474, 479 (1961). Furthermore, Maryland’s intermediate appellate court has stated that it is improper to use the term “prima facie evidence” in instructing a jury in connection with the presumptions although it is the term used in the statutory provisions.

In the face of a timely objection, the trial judge read to the jury § 10-307, including subsection (e) which provides

If at the time of testing there was in the person’s blood 0.13 percent or more by weight of alcohol, as determined by an analysis of the person’s blood or breath, it shall be prima facie evidence that the defendant was intoxicated.

This instruction, which the State concedes should not have been given, plainly told the jury that they could indulge in a prima facie inference that Briscoe was intoxicated. The statutory “prima facie evidence” language is, of course, addressed to the trial judge. It tells him, in effect, that if certain evidence has been introduced (after compliance with the statutory preconditions) there is a case sufficient to go to the jury — a case in which the jury may but is not required to find intoxication. In the case before us, we cannot hold that the “prima facie evidence” instruction was not prejudicial so far as the driving while intoxicated charge is concerned. Use of the “prima facie evidence” wording of § 10-307(e) might have incorrectly persuaded the jury that this was a statutory presumption, thus requiring Briscoe to rebut it.

Briscoe v. State, 60 Md.App. 42, 45-46, 479 A.2d 1385, 1386, cert. denied, 302 Md. 8, 485 A.2d 249 (1984).

Moreover, since the time of the defendant’s alleged offenses, Maryland has amended Trans. II § 21-902. In pertinent part this section at present provides,

(a) Driving while intoxicated or intoxicated per se. — (1) A person may not drive or attempt to drive any vehicle while intoxicated.

(2) A person may not drive or attempt to drive any vehicle while the person “is intoxicated per se”.

(b) Driving while under the influence of alcohol. — A person may not drive or attempt to drive any vehicle while under the influence of alcohol.

The offense of driving while intoxicated has been divided into two separate and distinct categories. § 21-902(a)(l) is the offense of driving while intoxicated as it has existed in Maryland for many years. In order to prove this offense the state must prove beyond a reasonable doubt that the defendant was in an intoxicated condition and that otherwise the defendant’s normal coordination or normal abilities were substantially impaired by the consumption of alcohol. Under § 21-902(a)(2) the state need not prove any impairment of the defendant’s normal coordination or abilities as being “intoxicated per se” is defined as follows,

“Intoxicated per se” means having an alcohol concentration at the time of testing of 0.10 or more as measured by grams of aleohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

Trans. II § 11-127.1

It is also noteworthy that at present there is no statutory presumption for driving while intoxicated in Cts. & Jud.Proe. § 10-307 as it is unnecessary because of the per se offense. On the other hand a presumption still exists for driving while under the influence of alcohol as a test result of at least 0.07 but less than 0.10 shall be considered prima facie evidence that the defendant was under the influence of alcohol. Cts. & Jud.Proe. § 10-307(d).

Based upon the placement of the pertinent provisions under an article or title designated as Evidence, the statements of the Maryland Courts indicating that § 10-307 is evidentiary in nature and the fact that the Maryland legislature subsequently enacted the “per se ” offense which does not require any evidence of impairment, it is manifest that it would be inappropriate to consider the Maryland presumptions that were in effect on July 17, 1994, or thereafter to be a redefinition of the offenses of driving while intoxicated or while under the influence. Furthermore, the authoritative interpretation by the courts of the State of Maryland of Maryland law should ordinarily be accepted as binding on a Federal Court; so that, the provisions of •Trans. II § 10-307 are not adopted under the Assimilative Crimes Act and could not be considered a redefinition of the offenses. See, United States v. Rowe, 599 F.2d 1319 (1979).

Accordingly, the Fourth Circuit’s interpretation of the law in Kay is not binding in interpreting Maryland law and its relationship to the Assimilative Crimes Act. To construe Maryland law in the same fashion would be an unwarranted fiction. The Maryland presumptions do not constitute a redefinition of the offenses of driving while intoxicated or while under the influence. In fact, they are not even true presumptions. They are merely evidentiary in nature and permit the trier of fact to draw certain permissible inferences, which inferences the trier of fact may accept or reject; and otherwise, give them whatever weight the trier of fact may deem appropriate along with all of the other evidence under consideration. They are thus not adopted by the Assimilative Crimes Act.

As the Court has concluded that the Maryland presumptions are not to be considered at the trial of the case, and that nothing has been presented to the Court thus far that would preclude the admissibility of the test result, the test result would ordinarily have no relevance unless its significance was otherwise explained. Regrettably, Congress has not seen fit to establish permissible inferences that could be utilized in all Federal prosecutions for offenses involving the driving of a motor vehicle and the consumption of an alcoholic beverage either within the special territorial jurisdiction of the United States or within other areas under the charge and control of the Government. See, United States v. Dreos, supra, 156 F.Supp. at p. 207 (legislative jurisdiction not required). In addition, under the commerce clause, Congress has the power to enact a national law prohibiting driving while intoxicated and related offenses for the entire county which could also include the appropriate presumptions and/or inferences to be applied See, 18 U.S.C. §§ 342, 343 and 49 U.S.C. § 31310. Because of the national drunk driving problem, in this Court’s opinion, it would not be inappropriate to set a national standard which would be binding upon the states.

Under the Assimilative Crimes Act, the Government adopts the laws of the various states of the union, and as a result, there is no uniformity in the various offenses involving driving a motor vehicle and the consumption of alcohol within federal enclaves. Even though one of the major reasons for enacting the Assimilative Crimes Act was to obtain uniformity of treatment for acts committed by individuals within a particular state and individuals who commit the same act within a Federal enclave of that state,

Congress should act promptly to set a uniform standard for all offenses involving driving a motor vehicle and the consumption of alcohol for all Federal property whether under the Assimilative Crimes Act or otherwise. Congress passed the Federal Implied Consent Law, but more needs to be done.

Since Congress has not set a standard, and since the Court has determined that the Maryland presumptions do not apply, in order for the test result to have any relevance, expert testimony would usually be required. Accordingly, if the Government intends to utilize the test result at trial, the significance of the test result would ordinarily need to be explained by an expert witness; such as, a physician or toxicologist. Should the Government choose not to call an expert witness, the test result would be inadmissible at trial unless some other valid legal theory supports its admissibility.

Depending upon the particular jurisdiction involved, the presumptions and/or inferences that may be drawn from a particular blood or breath alcohol level may be sufficient to convict an individual beyond a reasonable doubt of driving while intoxicated or under the influence even though there may not be any other evidence or only slight evidence of intoxication or alcohol impairment. The test result can supply in some instances, in and of itself, one of the essential elements of the offense.

Except for the per se offense, the Maryland legislature has not defined either “under the influence of alcohol” or “intoxication.” The Court of Special Appeals in Brooks v. State, 41 Md.App. 123, 126-29, 395 A.2d 1224, 1226-28 (1979) addressed “impairment by alcohol” under a prior statute and not “under the influence of alcohol.” The Court stated, however, that these phrases are synonymous and relied primarily upon eases from other jurisdictions that interpreted “under the influence” statutes. In Alston v. Forsythe, 226 Md. 121, 132, 172 A.2d 474, 479 (1961), a civil action alleging negligence, the Court of Appeals quoting from Clay v. State, 211 Md. 577, 584, 128 A.2d 634, 638 (1957) apparently referring to “under the influence of alcohol” appears to have approved the following definition of driving while under the influence of alcohol,

“drinking to the extent of probably affecting one’s judgment and discretion or probably affecting one’s nervous system to the extent that there is a failure of normal coordination, although not amounting to intoxication.”

See, Maryland Criminal Pattern Jury Instructions-Cv. 4:10, p. 171 (1991).

In Maryland, the offense of driving while under the influence of alcohol is a lesser included offense of driving while intoxicated. The offenses differ only in degree. In other states, especially where the offenses are not divided into a lesser and greater offense, the terms driving while intoxicated and driving while under the influence of alcohol may be synonymous. In states in which the offenses • are divided by degree, the greater offense may be known as driving while intoxicated or driving while under the influence of alcohol, and the lesser offense may be known as driving while under the influence of alcohol or driving while impaired by the consumption of alcohol.

In construing the Maryland cases, this Court has defined driving while intoxicated as driving a motor vehicle when an individual’s normal judgment, perception, and/or coordination was substantially, adversely affected; that is, made worse, to a significant degree by the consumption of an alcoholic beverage, and has defined driving under the influence of alcohol as driving a motor vehicle when an individual’s normal judgment, perception, an