United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. HERRERA, UNITED STATES DISTRICT JUDGE.
Gregory Hamilton was federally prosecuted for the misdemeanor
offenses of driving under the influence of alcohol and unsafe
operation of a vehicle at the El Morro National Monument in
western New Mexico. A federal magistrate judge found Mr.
Hamilton guilty on both counts following a bench trial and
sentenced him to one year of probation with special
conditions and assessed a $20 fine. Mr. Hamilton appeals his
convictions, arguing that they were supported by insufficient
evidence. He also argues that the prosecutor's waiver of
his opening statement deprived Mr. Hamilton of fair notice of
the law and facts against him, thereby entitling him to an
acquittal. The Court affirms the convictions and dismisses
September 2017, Mr. Hamilton, an architecture student at the
University of New Mexico, was on a class trip at the El Morro
National Monument. See Information, ECF No. 1;
Transcript of Bench Trial 156:1-15, ECF No. 21 (Tr.). The
class arrived around 1:00 p.m., hiked for about two hours,
and then started to make dinner in the campground area.
Id. at 156:16-17; 157:7-15. The group, including Mr.
Hamilton, started drinking Bud Light beers. Id. at
157:18-22. Before his arrest, Mr. Hamilton drank a total of
two beers. Id. at 37: 16-20; 158:9-12.
the class members parked their cars in a way that congested
the one-way looped road, park rangers arrived at the campsite
and told class members, including Mr. Hamilton, to move their
improperly parked cars. Id. at 159:5-21. It was in
response to this command that Mr. Hamilton went to his car
and began moving it to an open spot behind a Jeep owned by a
classmate. Id. at 95:10-12. Park Ranger Ryan
Gallagher, the arresting officer, watched and heard Mr.
Hamilton strike the Jeep. Id. at 36:6-7. Then Mr.
Hamilton reversed his car so that the driver of the vehicle
behind him sounded its horn, although no collision occurred.
Id. at 36:6-9. Watching all of this, Ranger
Gallagher “fear[ed] another collision to be
imminent.” Id. 36:10. However, Ranger
Gallagher testified at trial that no visible damage resulted
to the Jeep and that Mr. Hamilton's rate of speed was
about five to ten miles per hour, an appropriate rate of
speed for the area's 15 m.p.h. limit. Id. at
92:21-25 - 93:1-4.
Gallagher approached Mr. Hamilton in his vehicle and
described at trial his observations as follows:
As I reached the driver's side of the vehicle, the window
was open. I asked the Defendant if he was okay. His response
to me was, “What happened?” I noted that his
speech was slurred and there was an odor of alcoholic
beverage about the vehicle … I asked him to produce
registration and identification documents for the vehicle.
[He] had some difficulty in doing that. I asked him how much
he had had to drink. He responded to me, two beers. I asked
the Defendant then to step out of the vehicle. [He] had
difficulty with the seatbelt and had to use the door to aid
in his exit … His eyes did appear bloodshot.
Id. at 36:14-24; 37:15.
point Ranger Gallagher attended to an unrelated altercation.
Id. at 40:6-9. The ranger instructed Mr. Hamilton to
sit on the tail of the officer's truck, and for about 45
minutes Mr. Hamilton remained seated there as directed and
“complied quite well.” Id. 40:9-19. When
he came back Ranger Gallagher administered three field
sobriety tests (FSTs) to Mr. Hamilton - a one-legged stand
test, a walk-and-turn test, and a horizontal gaze nystagmus
(HGN) test. Ranger Gallagher did not breathalyze Mr. Hamilton
because he did not have a portable breathalyzer and driving
Mr. Hamilton to a police station with a breathalyzer would
have resulted in several hours of transportation time.
Id. at 88:13-17. Based on his observations of Mr.
Hamilton performance of the FSTs, his admission to drinking
two beers, Mr. Hamilton's collision with the Jeep and
then getting honked at, Ranger Gallagher cited Mr. Hamilton
for DUI and unsafe operation of a vehicle. Id. at
The Court's Evidentiary Rulings and Ranger
trial each side called only one witness. Ranger Gallagher
testified for the United States while Rod Gillson, Mr.
Hamilton's classmate, testified for the defense.
Concerning the three FSTs, defense moved on both substantive
and procedural grounds to preclude Ranger Gallagher from
offering expert testimony linking performance on the FSTs to
intoxication. Defense argued that substantively such
testimony must be subjected to Fed.R.Evid. 702 analysis set
forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). Procedurally, Defense argued
that the United States did not disclose experts as required
by Fed. R. Crim. P. 16(a)(1)(G).
trial court mainly granted Mr. Hamilton's motion. It
allowed Ranger Gallagher to offer lay testimony about his
general observations from the field tests but precluded him
from offering expert testimony that the tests results were
indicators of intoxication. Thus, as to the HGN test, the
court permitted Ranger Gallagher to testify that he conducted
the HGN test as background information but prevented him from
opining about what that test yielded. See Tr. at
48:5-8;13-15. Concerning the other two field sobriety tests,
the court ruled that Ranger Gallagher could “testify as
to general observations during the field sobriety test
that's relevant as to impairment, ” but not opine
on whether Mr. Hamilton's performance was “a pass
or a fail” or extrapolate Mr. Hamilton's likely BAC
from his performance on these field studies. Id. at
these limitations on his testimony, Ranger Gallagher took the
stand. He testified that before he administered the
one-legged stand test, he instructed Mr. Hamilton on how to
perform the test by keeping his arms at his sides,
“raise one foot, point that toe forward and look down
at that foot, and then begin counting out loud, 1-1, 000,
2-1, 100, 3-1, 000, until such time the officer tells them to
discontinue.” Id. at 80:2-3; 5-8. Ranger
Gallagher even demonstrated putting his foot down and
re-raising his foot all the while counting. See id.
at 80:19-24. Ranger Gallagher described Mr. Hamilton's
performance on the one-legged stand test as follows:
The Defendant did begin the test when told to do so. He did
look down at the foot that was raised and was pointing. He
did sway, but kept his arms at his side, … and swayed
to a degree that I was fairly certain he was going to lose
his balance. He did not. The manner of counting the Defendant
used changed. He changed from counting 1-1, 000 - or I think
it's 1, 000-1, 1, 000-2, as I denoted in my probable
cause. Just then, after the fourth digit, in essence, started
counting by 4, 000, 5, 000, 6, 000, until he reached the
number 10, 000. Then he put his foot down and did not
continue to complete the test. I did not - he did not
continue to the point at which I would have told him to
finish the test.
Id. at 82:7-19.
the walk-and-turn test, Ranger Gallagher instructed Mr.
Hamilton that completing the test involved “stand[ing]
in a particular position, arms at [his] sides, feet placed in
a heel-to-toe manner … [and to] visualize a line on
the pavement, and to walk heel to toe, ” continuing for
nine steps while counting out loud. Id. 83:6-11;
83:25 - 84:1-2. On the ninth step Ranger Gallagher instructed
Mr. Hamilton to “take a series of small steps pivoting
on the lead foot around in a manner described … [t]hen
continue back … towards [the] starting point and
another series of nine heel-to-toe steps.” Id.
83:17-20. Ranger Gallagher explained that
very quickly, [Mr. Hamilton] began to step off line, and, in
essence, walk in a normal manner - was not heel to toe at
all. He did continue in a straight line with hands to the
side. Upon reaching the ninth step, he, again, stopped and
did not continue the test … [he] just stopped
performing the test after the ninth step, without turning or
returning the nine steps back.
Id. 84:25 - 85:1-4.
The Court's Findings of Guilt
concluded and the magistrate judge, sitting as trier of fact,
rendered verdicts. As to the DUI count, the court began by
noting that the DUI regulation can be violated in one of two
ways - by having a BAC of 0.08 which is DUI per se
or by driving “under the influence … to a degree
that renders the operator incapable of safe operation.”
36 C.F.R. § 4.23(a); Tr. 182:22-25. The court noted that it
was significant that Mr. Hamilton was charged with violating
the latter, and therefore the main question was the degree to
which the two beers rendered Mr. Hamilton incapable of safely
operating the vehicle. See Tr. 182:24-25 - 183:1-10.
The court acknowledged that “this is a much closer case
than a typical driving under the influence case, ” and
that of the two counts the DUI count was “a much
tougher case.” Id. 182:22-24; 184:3-6.
However, the court reasoned that the following indicia of
intoxication, in the aggregate, supported a guilty verdict:
Mr. Hamilton's admission to drinking two beers and the
unquestionable fact that he was driving, hit a parked car,
backed close enough to another one so that it sounded its
horn, and seemed unaware of this all when Ranger Gallagher
confronted him. See Id. at 183:4-21. Without
elaboration, the court stated that it considered Ranger
Gallagher's field observations “relevant.”
the unsafe driving count, the trial court explained that the
standard for criminal liability was “less serious than
reckless driving, ” and that the question was whether
Mr. Hamilton failed to maintain a degree of control of his
vehicle necessary to avoid danger to persons, property, or
wildlife. Id. at 181:25 - ...