United States v. Hamilton

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY HAMILTON,

Defendant - Appellant.

No. 19-2136
(D.C. No. 1:18-MJ-02490-JCH-1)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
Mr. Gregory Hamilton was driving on federal lands when he had a
car accident after consuming alcohol. He was ultimately convicted of two
misdemeanors: (1) driving under the influence on federal lands and
(2) unsafely operating a motor vehicle on federal lands. Mr. Hamilton

*
Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit

June 11, 2020

Christopher M. Wolpert
Clerk of Court
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challenges the convictions based on insufficiency of the evidence. We
affirm.
1. Standard for Sufficiency of the Evidence
We conduct de novo review, applying the same standard that
governed in district court. United States v. Flanders, 491 F.3d 1197, 1207
(10th Cir. 2007). The district court was to view the evidence and
reasonable inferences favorably to the government and determine whether a
fact finder could rationally find guilt beyond a reasonable doubt. United
States v. Cope, 676 F.3d 1219, 1225 (10th Cir. 2012).
2. Driving Under the Influence of Alcohol
To obtain a conviction for driving under the influence of alcohol, the
government had to prove that Mr. Hamilton
 was operating a motor vehicle

 while under the influence of alcohol to a degree that rendered
him unable to safely operate a vehicle

 on federal lands administered by the National Park Service.

See United States v. Atkinson, 128 F. App’x 64, 65 (10th Cir. 2005)
(unpublished).
1
Mr. Hamilton does not challenge the sufficiency of
evidence that he was driving a motor vehicle on federal lands administered
by the National Park Service. He instead confines his challenge to the

1
Although Atkinson is not precedential, we regard it as a persuasive
statement of the elements.
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sufficiency of evidence that he was under the influence of alcohol to a
degree that he couldn’t safely operate a vehicle.
Mr. Hamilton argues that the government needed to prove that his
blood-alcohol content was 0.08% or higher. We disagree. The crime is
governed by 36 C.F.R. § 4.23(a)(1), and it does not provide a minimum
blood-alcohol content. A separate offense (governed by § 4.23(a)(2))
requires a blood-alcohol content of 0.08% or higher. But the law elsewhere
states that if the driver’s blood-alcohol content is lower than 0.08%, “this
fact does not give rise to any presumption that the operator . . . is not
under the influence of alcohol.” 36 C.F.R. § 4.23(d)(1). So “§ 4.23(a)(1)
does not require the government to prove the defendant’s blood alcohol
level.” United States v. Smith, 701 F.3d 1002, 1005 (4th Cir. 2012).
Though the evidence didn’t include testing of Mr. Hamilton’s blood-
alcohol content, the government presented substantial evidence of
intoxication. A ranger testified that he had
 heard Mr. Hamilton speak with slurred speech,
 smelled alcohol on his breath,
 observed that his eyes were bloodshot, and
 seen him drive into a parked jeep, nearly collide with a second
car, and perform poorly on multiple field sobriety tests.

Mr. Hamilton also acknowledged that he had consumed two beers. And
when the ranger asked Mr. Hamilton if he was okay, he responded by
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asking what had happened. This combination of evidence could permit a
reasonable finding that Mr. Hamilton had consumed enough alcohol to
prevent him from driving safely.
Mr. Hamilton points to various opinions interpreting the phrase
“under the influence” as “intoxicated” or “drunk.” But none of these cases
involve § 4.23(a)(1). This section defines being “under the influence” as
having consumed enough alcohol to render the driver “incapable of safe
operation.” 36 C.F.R. § 4.23(a)(1). We must interpret the regulatory
language rather than apply opinions interpreting other statutory definitions
of “under the influence.” Applying the regulatory language, we conclude
that the fact finder could rationally find that Mr. Hamilton had consumed
enough alcohol to render him unable to safely operate a vehicle.
3. Unsafe Operation of a Motor Vehicle
The evidence was also sufficient to support the conviction of
unsafely operating a motor vehicle. Mr. Hamilton was driving about five
miles per hour when he hit one vehicle and nearly hit another. After the
accident, Mr. Hamilton asked the ranger what had happened. And, as noted
above, the ranger testified that Mr. Hamilton had performed poorly on

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multiple field sobriety tests. In these circumstances, a reasonable fact
finder could find that Mr. Hamilton had unsafely operated a motor vehicle.
Affirmed.

Entered for the Court

Robert E. Bacharach
Circuit Judge
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