United States of America v.  Mark J. Hagedorn

OPINION ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4293 
MARK J. HAGEDORN,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, District Judge.
(CR-01-114)
Submitted: October 23, 2002
Decided: December 16, 2002
Decided on Rehearing: February 3, 2003
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Oldric J. Labell, Jr., Newport News, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Ryan R. McKinstry, Special Assis-
tant United States Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mark J. Hagedorn appeals his federal conviction for driving under
the influence in violation of Va. Code Ann. § 18.2-266 (Michie
2001), as assimilated under 18 U.S.C. §§ 7, 13 (2000). He claims that
there was insufficient evidence to support his identification as the
driver of a vehicle involved in a roll-over accident at Fort Eustis, Vir-
ginia. He also claims that the district court violated his Fifth Amend-
ment right against self-incrimination by inferring an admission that he
was the driver of the vehicle by remaining silent in the face of being
advised of Virginia’s implied consent statute applicable to drivers.
See Va. Code Ann. § 18.2-268.2 (Michie 2001).
Taking Hagedorn’s constitutional claim first, we review this matter
de novo as it involves solely a question of law. United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992). The magistrate judge con-
sidered Hagedorn’s silence after being advised of the implied consent
statute as an admission that Hagedorn was, in fact, the driver. The
Government argues this inference is permissible because of the con-
stitutionality of the use of defendants’ incriminating statements relat-
ing to refusals to submit to blood and alcohol tests. See South Dakota
v. Neville, 459 U.S. 553, 566 (1983) (upholding against a Fifth
Amendment challenge the use of a defendant’s statement refusing to
submit to breath test in a subsequent prosecution for refusal). We
reject this reasoning. Hagedorn’s silence did not amount to a refusal.
Indeed, he consented to the breath test, and the results were ultimately
used against him at trial. Rather, Hagedorn merely exercised his right
to decline to speak when advised of the implied consent laws applica-
ble to motorists. We cannot agree that silence under such circum-
stances constitutes an admission of culpability. See, e.g., Miranda v.
Arizona, 384 U.S. 436, 468 n.37 (1966).
Nevertheless, we find the error harmless because unrelated evi-
dence established Hagedorn’s identity as the driver. Although the
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Government did not directly identify Hagedorn as the driver of the
vehicle, a full reading of the testimony of witness Jennifer Lippincott
provides the necessary identification. On questioning from defense
counsel regarding a conversation she had with "the driver," Lippincott
referred to an interchange that earlier in her testimony she had
recounted as having transpired between herself and Hagedorn.
Accordingly, we conclude that any error was harmless beyond a rea-
sonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967).
We therefore affirm the judgment of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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