Case 8:10-cr-00069-RWT Document 50 Filed 09/22/10 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA *

v. * Crim No. RWT-10-0069

KRISTEN DEANNA SMITH *

*************

MEMORANDUM IN SUPPORT OF
MOTION FOR JUDGMENT OF ACQUITTAL

The Defendant, Kristen Smith, through her attorneys, James Wyda, Federal Public

Defender, Michael Citarmanis, Assistant Federal Public Defender, Susan M. Bauer, Assistant

Federal Public Defender, and Patrick Kent, Assistant Federal Public Defender, hereby submits

this memorandum in support of Ms. Smith’s motion for judgment of acquittal, pursuant to Rule

29 of the Federal Rules of Criminal Procedure:

MJOA is Appropriate Where The Government Fails to Present Evidence on an

Essential Element of the Offense

If, at the close of the government’s case, the proof is insufficient to sustain a conviction,

the Court must enter a judgment of acquittal. F.R.C.P. 29(a). The motion for a judgment of

acquittal should be denied if “viewing the evidence in the light most favorable to the

government, any rational trier of facts could have found the defendant guilty beyond a

reasonable doubt.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In reviewing

the merits of a motion for judgment of acquittal, the Court should defer to the jury on issues of

witness credibility. United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998)(overruled on other

grounds); United States v. Smith, 451 F.3d 209, 217 (4th Cir.), cert. denied, 127 S.Ct. 197 (2006);

and United States v. Lentz, 383 F.3d 191, 199 (4th Cir. 2004), cert. denied 544 U.S. 979 (2005).
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However, where the government fails to offer evidence on an essential element of the offense,

the Court must direct a verdict in favor of the defendant. United States v. McKenzie, 266 F.2d

524, 527 (10th Cir. 1959)(“If there is a failure to prove an essential element of the offense, the

defendant is entitled to an acquittal.”); United States v. Ramming, 915 F.Supp. 854, 859 (S.D.

Texas 1996)(“In order for the government to avoid a Rule 29 motion...there must be some

evidence on each of the necessary elements sufficient for the Court to determine that a jury could

find that the crime...occurred, beyond a reasonable doubt.”); United States v. Beck, 615 F.2d 441,

448 (10th Cir. 1980)(judgment of acquittal “may be granted only when the relevant evidence is

insufficient to prove all the elements of the charged offense.”).

The Government Failed to Prove .08% or Higher at the Time of Driving

In this case, the government failed to produce evidence that “[t]he alcohol concentration

in [Ms. Smith’s] blood...was .08 grams or more of alcohol per 100 milliliters of blood,” at the

time she was “operating or being in actual physical control of a motor vehicle,” as required to be

proven by 36 C.F.R. §4.23. This regulation, which prohibits the operation of motor vehicles on

lands within the jurisdiction of the National Park Service, while under the influence of alcohol or

drugs, sets forth two separate and distinct methods of prosecution. Section (a)(1) of the

regulation requires the government to prove that the driver was under the influence of alcohol or

drugs “to a degree that renders the operator incapable of safe operation.” 36 C.F.R. §(a)(1).

Section (a)(2), referred to as the per se offense, merely requires proof that the driver’s blood

alcohol content (BAC) exceeded .08% at the time of driving.

The government chose to charge Ms. Smith with causing the death of Jabari Outtz,

during the commission of “an unlawful act not amounting to a felony, that is, operating a motor

vehicle while the alcohol concentration in her blood was 0.80 grams or more of alcohol per 100

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milliliters of blood.” By doing so, the government specifically alleges a violation of 36 C.F.R.

§4.23(a)(2) - the per se violation - as the misdemeanor being committed at the time of the

passenger’s death, and not (a)(1), the impairment section.

36 C.F.R. §4.23(a)(2) is a “No Presumption” Statute

The federal DUI regulation applicable to conduct within national parks is a no

presumption statute. In United States v. Stout, 2009 WL 5217047 (D.Nev.), U.S. Magistrate

Judge Brower, of the District of Nevada, described the government’s evidentiary obligations

under §4.23(a)(2) as follows:

Unlike some state DUI laws, 36 C.F.R. §4.23(a)(2) does not make
it unlawful to have a blood alcohol level above the legal limit
within a specified time after operating a motor vehicle. Nor does it
contain a presumption regarding the person’s blood alcohol level
at the time he was operating or in physical control of a vehicle
based on subsequently obtained breath or blood test results.
Because there is no presumption based on the test results, the
Government is required to prove that a defendant’s blood alcohol
content was above the legal limit at the time of operating the
vehicle and not merely at the time the breath or blood sample was
taken.

Stout *6 (emphasis added).

To satisfy the elements of the per se offense the government must submit expert evidence

that “relates back” the blood alcohol content. Federal courts applying § 4.23(a)(2) have

recognized the legal insufficiency of a blood test result that exceeds the legal limit, standing

alone, to prove a violation of the federal per se drunk driving regulation. United States v. Wight,

884 F.Supp. 400 (D.Colo. 1995) (in prosecution under § 4.23(a)(2) where breath test result of

.151 was acquired two hours and twelve minutes after the accident, admitting evidence of the

test, but finding defendant not guilty because no expert testimony related the result back to the

accident); United States v. Nestor, 474 F.Supp.2d 174 (D.Me. 2007) (in prosecution under §

4.23(a)(2) where breath test result of .10 was obtained fifty-two minutes after the defendant was

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driving, admitting evidence of the test, but finding defendant not guilty because no expert

testimony related the result back to the accident); United States v. Rauhof, 2006 WL 3455066

(W.D. Va.)(blood result of .12% from a test taken four and a half hours after the accident was

insufficient to prove a violation of §4.23(a)(2) in the absence of evidence relating the test back to

the time of driving); United States v. French, 2010 WL 1633456 (D.Nev.)(breath tests taken one

and a half hours after traffic stop which revealed a BAC of .149% and .135% insufficient to

prove a violation of §4.23(a)(2) “in the absence of qualified testimony by an expert relating the

intoxilyzer test results back to the time of the stop...”); United States v. Ashurst, 1997 WL

414578 (9th Cir)(alcohol test taken one and a half hours after accident is not “conclusive”

evidence of what the BAC was at the time of the accident). Indeed, some federal courts have

required especially particular expert evidence. United States v. Stout, 2009 WL 5217047, *8-9

(D.Nev. 2009) (in prosecution where breath test result of.178 was obtained less than forty

minutes after the defendant was driving, admitting evidence of the test, but finding the defendant

not guilty under §4.23(a)(2), even though an expert witness testified to the average rate of

alcohol dissipation, because the expert did not estimate the defendant’s BAC at the time of her

driving, and because the expert did not explain how “sex, weight, or consumption of food” might

have effected defendant’s absorption of alcohol).

§4.23(a)(2) Requires Expert Testimony Relating Test Result Back to Driving Conduct

In United States v. Wight, supra, a federal ranger responded to an early morning accident

in the Rocky Mountain National Park. Wight at 401. Upon her arrival, the ranger discovered a

vehicle that had left the roadway, and the defendant, Wight, was in the driver’s seat. The ranger

smelled alcohol on Wight’s breath, and noticed his eyes were bloodshot and his speech was

slow. Wight admitted he had been drinking alcohol the night before. After administering field

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sobriety tests, designed to detect alcohol impairment, the ranger concluded Wight was

intoxicated and transported him to the police station for a breath alcohol test. The results of that

test were .151%. Wight was found not guilty. In reaching its conclusion, the Court stated:

[The prosecution] chose to proceed on the “per se” violation. By doing

so, it had an obligation under the regulation to establish the alcohol
concentration at the time of driving or actual physical control. The test
result at 8:27 a.m. was insufficient, in and of itself, to establish what
Defendant’s concentration was at 6:15 a.m., or even 7:00 a.m. Once [the
prosecution] chose to proceed on the “per se” violation, it had to present
qualified evidence that “related back” the test results to the time of driving
or actual physical control. No such qualified testimony was offered in this
case.

Wight at 403.

Although the Court heard, and apparently credited, the testimony of the park ranger,

indicating Wight was substantially impaired by alcohol, that evidence was qualitatively

insufficient to prove the per se offense of §4.23(a)(2). Wight at 401. The Court noted that

§4.23(a)(1) is a different offense from (a)(2), in that (a)(1) is a “traditional” DUI regulation that

requires proof of driving under the influence of alcohol “to a degree that renders the operator

incapable of safe operation.” Id. The per se offense, on the other hand, does not require the

government to prove impairment, but requires “qualified” evidence to prove the BAC was above

the legal limit at the time of driving. Acknowledging the complexity of relation back evidence,

the Court found “[m]any variables may affect the result of a blood alcohol test including the type

of machine used in the test, the weight, sex and physical condition of the driver, any medication

the driver might be taking, how much food is in the driver’s stomach at the time of the test...and

how long after the driving the test was administered.” Id. at 402. The Court recognized the

scientific fact that at any given time, the BAC may be rising or falling. Consequently, although

evidence was introduced that supported a finding of alcohol impairment, such as the odor of

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alcohol, bloodshot eyes, slow speech, admissions of alcohol consumption, and failure to

successfully complete field sobriety tests, without expert testimony relating the test results to the

time of driving, the government could not prove a violation of §4.23(a)(2).

A similar conclusion was reached in United States v. Rauhof, supra, in which a blood test

taken four and a half hours following an accident, which revealed a BAC of .12%, was

insufficient to prove that the defendant, Rauhof, had a BAC that exceeded .08% at the time he

was driving. Rauhof *2. Similar to the facts presented in this case, the federal officers were

unable to interview Rauhof at the scene of the accident, because by the time they had arrived,

Rauhof was removed by medical personnel and transported to a hospital for treatment. Without

any evidence relating the blood result back to the time of the accident, the Court was required to

find Rauhof not guilty of §4.23(a)(2). In also acquitting Rauhof of §4.23(a)(1), the impairment

section, which requires evidence that the driver, due to alcohol impairment, is incapable of safely

operating the motor vehicle, the Court discussed how the proof requirements of the two sections

vary. Initially, the Court stated that “a showing of Rauhof’s BAC at the time of the accident is

unnecessary to sustain a conviction” under (a)(1). Rauhof *3. In fact, the Court noted “[t]he

regulation does not state that this showing of an incapability of safe operation must be shown by

diagnostic or laboratory testing such as a preliminary breath test or a blood alcohol content test.”

A successful prosecution under (a)(1) “may rest upon evidence of the defendant’s behavior,

including things such as erratic driving, slurred speech, bloodshot eyes, failure of field sobriety

tests and the smell of alcohol about the defendant’s person, to name a few.” Id. By contrast, the

(a)(2) per se offense may only be proven by a laboratory test.1

1
§4.23(c)(4) states that “[a]ny test shall be conducted by using accepted scientific methods and equipment of
proven accuracy and reliability operated by personnel certified in its use.”

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Federal courts continue to reiterate the necessity of expert testimony to prove a violation

of §4.23(a)(2). As recently as April of 2010, United States Magistrate Judge Watkins, of the

District of Nevada, held that “in the absence of qualified testimony by an expert relating the

intoxilyzer test results back to the time of the stop, a defendant cannot be convicted for a

violation of 36 C.F.R. §(a)(2). United States v. French, supra, *4 (emphasis added).

Finally, United States v. Stout, 2009 WL 5217047, *9 (D.Nev.), stresses that the

judgment, or common sense, of the fact finder cannot substitute for expert testimony on the issue

of whether the blood alcohol level exceeded the legal limit at the time of driving. (“Although

the Court strongly suspects that Ms. Stout’s blood alcohol content was above 0.08 at the time she

was operating or in actual physical control of her vehicle, the Government has not met its burden

under §4.23(a)(2) to specifically prove that Ms. Stout’s blood alcohol was 0.08 or above at that

earlier point in time.”). The defendant, Stout, was arrested by a federal ranger, who noticed

Stout’s vehicle enter a closed park area, and exhibit signs of erratic driving. Upon encountering

Stout, the ranger observed evidence of alcohol impairment, including the strong odor of alcohol,

watery, red and bloodshot eyes, slurred speech and fumbling to produce a driver’s license and

registration. Stout *1. Stout also failed several field sobriety tests. A breath test taken less than

45 minutes after the traffic stop revealed a BAC of .182, a result more than double the legal

limit. A “trained forensic analyst” provided expert testimony about standard rates of alcohol

elimination, that “would...suggest that a person with a blood alcohol content of .178 and .182

was above 0.80 35 to 40 minutes earlier.” Notwithstanding that testimony, the Court found

insufficient evidence to prove the defendant exceeded the legal limit of .08%. The Court noted

the absence of specific expert testimony on the blood alcohol content at the time of driving,

noting no factoring in of “the effect that Ms. Stout’s sex, weight, or consumption of food may

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have had on the absorption of alcohol into her system.” Stout *9. The Court found mere

evidence of whether the BAC was rising or falling at the time of the test “inconclusive” as to

what the BAC was at the time of driving. Stout is particular significant to this case in that

expert testimony was admitted at the trial, which provided general scientific evidence about

absorption and elimination rates. However, without an individualized assessment of a

defendant’s personal characteristics and consumption of alcohol before driving, and in the

absence of any expert opinion as to what the BAC was at the time of driving, the Court was

unable to convict of the per se charge.

The Court did find the high BAC, taken within a relatively short period of time after the

driving conduct, along with abundant evidence of impairment, was sufficient to find Ms. Stout

guilty of the (a)(1), driving under the influence, charge.

Evidence of Impairment is Not Relevant to §4.23(a)(2)

Evidence of impairment is relevant to the manslaughter charge in this case, as indicative

of whether there is a causal link between a misdemeanor amounting to “gross negligence,” and

the victim’s death. See United States v. Pardee, 368 F.2d. 368, 374 (4th Cir. 1966). However,

impairment evidence is not relevant to the underlying per se DUI offense, which only requires

proof that at the time the accident occurred, Ms. Smith was operating her motor vehicle with a

BAC that exceeded .08%. See Commonwealth v. Kemble, 605 A.2d 1240 (Pa.1992). Like the

federal statute at issue here, the Commonwealth of Pennsylvania adopted DUI regulations that

permit the state to convict under either a per se theory or an impairment theory. Kemble at 1242

(“Subsection (a)(4) presumes that an operator with a blood alcohol content of 0.10% or greater is

unfit to drive, whereas subsection (a)(1) requires proof that the defendant was, in fact, incapable

of safe driving because of an excessive consumption of alcohol.”). The Superior Court of

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Pennsylvania reversed Kemble’s conviction under the state per se offense, because the lower

court erred in admitting evidence the defendant was impaired, which included driving error, lack

of balance, odor of alcohol, and failure of field sobriety tests. In so holding, the Court reasoned

that a per se charge “involves a narrowly focused inquiry that is solely concerned with a

determination of whether a defendant had a .10% or greater blood alcohol level at the time that

she drove her automobile.” Accordingly, “impairment evidence is not relevant since it does not

logically or reasonably tend to prove or disprove that a defendant’s blood alcohol level

[exceeded the legal limit].” Id. at 1243.

In this case, the act of “gross negligence” that underlies the involuntary manslaughter

charge is separately and distinctly defined by statute as having only two elements - operating or

being in actual physical control of a motor vehicle, and having a BAC at the time of operation

that exceeds the legal limit. Whereas impairment evidence is relevant to a violation of

§4.23(a)(1), the government chose not to charge Ms. Smith with causing the death of another

while driving under the influence of alcohol, to the extent that she was incapable of safely

operating her vehicle, but rather chose to proceed with the (a)(2) per se offense. Testimony and

opinions of lay witnesses, or even police officers, as to Ms. Smith’s physical appearance or

sobriety, cannot inform the jury or the Court as to a specific blood alcohol level, and cannot

substitute for legally required expert testimony.

Conclusion

The indictment in this case charges Ms. Smith with causing the death of Jabari Outtz,

during the commission of a misdemeanor offense, specifically alleged as driving her vehicle

while her BAC was higher than .08%. The government failed to present legally sufficient proof

that Ms. Smith’s BAC exceeded that legal limit. Evidence of impaired driving, while arguably

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relevant to the link between the commission of a grossly negligent act, and the death of another,

is not evidence of a particular BAC at the time the accident occurred. As the cases described

herein make clear, evidence of BAC is scientific in nature and requires an expert analysis of the

metabolic process of alcohol absorption and elimination, as well as consideration of personal

characteristics of the accused, and a detailed history of alcohol consumption prior to the driving

conduct, from which the expert may relate the test results back to the time of the offense. In the

absence of that required expert testimony, the government fails to prove the underlying

misdemeanor that is part of the involuntary manslaughter offense.

The government presented evidence from Amber Howard that Ms. Smith smelled like

“white liquor.” She also testified that Ms. Smith was hysterical and panicked, which she

attributed, several times in her testimony, to Ms. Smith having just been in serious accident,

where her passenger had apparently died. Ms. Howard specifically stated that each time Ms.

Smith looked back at the car or toward Mr. Outtz, she became much more emotional and

irrational. Ms. Howard did not render any opinion as to whether Ms. Smith was intoxicated at

that time. No other witness testified as to Ms. Smith’s condition at, or near the time of the

accident.

Mr. Lucas Zarwell, a government toxicologist testified in general terms about the

metabolism of alcohol and the average rates of absorption and elimination. He also

acknowledged on cross-examination that those absorption rates are highly variable and can be

effected by the following: weight, gender, history of alcohol consumption, timing of alcohol

consumption, food in the gastrointestinal tract, trauma, shock, medical conditions, and other

factors. He also admitted that a person could consume a large amount of alcohol just before

driving, and the alcohol level can continue to rise for up to several hours. He did not testify

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about the specific physical characteristics of the defendant, or of any personal knowledge of the

amount and timing of alcohol she consumed prior to driving. Ultimately, he gave no opinion as

to what the BAC was at the time the accident occurred in this case.

The case may not proceed to a jury verdict, and “the motion for judgment of acquittal

must be granted when the evidence is so scant that the jury could only speculate as to the

defendant’s guilt.” United States v. Beck at 448. No witness testified in this case as to what the

BAC was at the only time that is legally relevant - the time of the accident. Accordingly, the

Court must direct a verdict of acquittal in favor of Ms. Smith.

Respectfully submitted,

JAMES WYDA
Federal Public Defender

/s/
MICHAEL T. CITARAMANIS

___________/s/____________________
SUSAN M. BAUER

___________/s/_____________________
PATRICK E. KENT
Assistant Federal Public Defenders
Office of the Federal Public Defender
6411 Ivy Lane - Suite 710
Greenbelt, Maryland 20770
Telephone: (301) 344-0600
Facsimile: (301) 344-0019

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CERTIFICATE OF SERVICE

I hereby certify that on this the 22nd day of September, 2010, a copy of the foregoing

Memorandum In Support Of Motion For Judgment Of Acquittal was hand-delivered to Hollis

Weisman, Esq., Assistant United States Attorney, 400 United States Courthouse, 6500

Cherrywood Lane, Greenbelt, Maryland, 20770.

_____________/s/________________________
Susan M. Bauer, Esq.
Assistant Federal Public Defender