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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Sunday, April 02, 2017

Federal DWI in Sandy Hook NJ 18 U.S.C.A 13

Federal DWI in Sandy Hook NJ 18 U.S.C.A 13 Laws of States adopted for areas within Federal jurisdiction , including Sandy Hook and National Gateway, Gunnison Beach, Fort Dix, Fort McGuire, Picatinny Arsenal, Naval Station Earle Lakehurst Joint Base McGuire-Dix-Lakehurst

         If charged with a dwi or drug offense at Sandy Hook, the case will be handled in the Federal Magistrate Court, currently in Newark at the Federal Courthouse.

DWI Federal 36 C.F.R. 4.23(a) Federal Parks, including Sandy Hook, NJ

DWI Federal 36 C.F.R. 4.23(a) Federal Parks, including Sandy Hook, NJ



4.23 - Operating under the influence of alcohol or drugs.

(a) Operating or being in actual physical control of a motor vehicle is prohibited while: (1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or (2) The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph.

(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.

(c) Tests. (1) At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood alcohol and drug content.

(2) Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissible in any related judicial proceeding.

(3) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.

(4) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.

(d) Presumptive levels. (1) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph (a)(1) of this section. If the alcohol concentration in the operator's blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (a)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol.

(2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof.

[52 FR 10683, Apr. 2, 1987, as amended at 68 FR 46479, Aug. 6, 2003]

(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
(1) Subject to paragraph (2) and for purposes of subsection (a) of this section, that which may or shall be imposed through judicial or administrative action under the law of a State, territory, possession, or district, for a conviction for operating a motor vehicle under the influence of a drug or alcohol, shall be considered to be a punishment provided by that law. Any limitation on the right or privilege to operate a motor vehicle imposed under this subsection shall apply only to the special maritime and territorial jurisdiction of the United States.
(A) In addition to any term of imprisonment provided for operating a motor vehicle under the influence of a drug or alcohol imposed under the law of a State, territory, possession, or district, the punishment for such an offense under this section shall include an additional term of imprisonment of not more than 1 year, or if serious bodily injury of a minor is caused, not more than 5 years, or if death of a minor is caused, not more than 10 years, and an additional fine under this title, or both, if—
(i) a minor (other than the offender) was present in the motor vehicle when the offense was committed; and
(ii) the law of the State, territory, possession, or district in which the offense occurred does not provide an additional term of imprisonment under the circumstances described in clause (i).
(B) For the purposes of subparagraph (A), the term “minor” means a person less than 18 years of age.
(c) Whenever any waters of the territorial sea of the United States lie outside the territory of any State, Commonwealth, territory, possession, or district, such waters (including the airspace above and the seabed and subsoil below, and artificial islands and fixed structures erected thereon) shall be deemed, for purposes of subsection (a), to lie within the area of the State, Commonwealth, territory, possession, or district that it would lie within if the boundaries of such State, Commonwealth, territory, possession, or district were extended seaward to the outer limit of the territorial sea of the United States.

Assimilative Crimes Act, 18 U.S.C. § 13

The US Attorneys Office wrote the Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. § 7(3), when the act or omission is not made punishable by an enactment of Congress.
Prosecutions instituted under this statute are not to enforce the laws of the state, but to enforce Federal law, the details of which, instead of being recited, are adopted by reference. In addition to minor violations, the statute has been invoked to cover a number of serious criminal offenses defined by state law such as burglary and embezzlement. However, the Assimilative Crimes Act cannot be used to override other Federal policies as expressed by acts of Congress or by valid administrative orders.
The prospective incorporation of state law was upheld in United States v. Sharpnack, 355 U.S. 286 (1957). State law is assimilated only when no "enactment of Congress" covers the conduct. The application of this rule is not always easy. In Williams v. United States, 327 U.S. 711, 717 (1946), prosecution of a sex offense under a state statute with a higher age of consent was held impermissible, but a conviction for a shooting with intent to kill as defined by state law was upheld, despite the similarity of provisions of 18 U.S.C. § 113. Fields v. United States, 438 F.2d 205 (2d Cir.), cert. denied, 403 U.S. 907 (1971); but see Hockenberry v. United States, 422 F.2d 171 (9th Cir. 1970). See also United States v. Bowers, 660 F.2d 527 (5th Cir. 1981) (child abuse); United States v. Smith, 574 F.2d 988 (9th Cir. 1978)(sodomy). There seems to be a definite trend to construe 18 U.S.C. § 13 liberally to provide complete coverage of criminal conduct within an enclave, even where the offense is generally covered by Federal law. See, e.g., United States v. Johnson, 967 F.2d 1431 (10th Cir. 1992)(aggravated assault); United States v. Griffith, 864 F.2d 421 (6th Cir. 1988)(reckless assault); United States v. Kaufman, 862 F.2d 236 (9th Cir. 1988)(assault); Fesler v. United States, 781 F.2d 384 (5th Cir.), cert. denied, 476 U.S. 1118 (1986)(child abuse).
The Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. §  801 et seq., because of its unlimited applicability, is not considered an "enactment of Congress" within the meaning of 18 U.S.C. § 13. See United States v. Walker, 552 F.2d 566 (4th Cir. 1977), cert. denied, 434 U.S. 848 (1977)(drunk driving). See also Franklin v. United States, 216 U.S. 559 (1910). Military personnel committing acts on an enclave subject to Federal jurisdiction which are not made an offense by Federal statutes other than the U.C.M.J. may therefore be prosecuted in district court for violations of state law assimilated by 18 U.S.C. § 13, even though they are also subject to court martial. However, dual prosecution, it should be noted, is constitutionally precluded by the Double Jeopardy Clause. See Grafton v. United States, 206 U.S. 333 (1907).
Section 13 of Title 18 does not assimilate penal provisions of state regulatory schemes. See United States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977). Nor does it incorporate state administrative penalties, such as suspension of drivers licenses. See United States v. Rowe, 599 F.2d 1319 (4th Cir. 1979); United States v. Best, 573 F.2d 1095 (9th Cir. 1978). Section 13(b) allows suspension of licenses within the enclave.
Federal agency regulations, violations of which are made criminal by statute, have been held to preclude assimilation of state law. See United States v. Adams, 502 F. Supp. 21 (S.D.Fla. 1980)(carrying concealed weapon in federal courthouse); United States v. Woods, 450 F. Supp. 1335 (D.Md. 1978)(drunken driving on parkway). In Adams, 502 F. Supp. 21, the defendant was charged with carrying a concealed weapon in a United States Courthouse in violation of 18 U.S.C. § 13 and the pertinent Florida felony firearms statute. In dismissing the indictment, the Adams court concluded that a General Services Administration (GSA) petty offense weapons regulation (41 C.F.R. § 101-20.313), explicitly provided for by statute, 40 U.S.C. §  318a, amounted to an enactment of Congress within the meaning of 18 U.S.C. §  13 and, therefore, the defendant could not be prosecuted by the assimilation of state law which prohibited the same precise act.
It is important to note, however, that a critical provision of the GSA regulations apparently was not considered in Adams. See 41 C.F.R. § 101-20.315 which provides in part:
Nothing in these rules and regulations shall be construed to abrogate any other Federal laws or regulations or any State and local laws and regulations applicable to any area in which the property is situated.
This non-abrogation provision arguably would permit the assimilation of appropriate state firearms laws or other state statutes notwithstanding the existence of the GSA regulations. It appears that this language has never been considered in any reported case. Moreover, no discussion of the meaning of this language appears in the pertinent parts of the Federal Register, 43 Fed.Reg. 29001, July 5, 1978; 41 Fed.Reg. 13378, March 30, 1976.
We believe it would be reasonable to interpret this non-abrogation provision as permitting the government, in its discretion, to proceed under 18 U.S.C. § 13 and appropriate state firearms laws, rather than under the GSA weapons regulation.

Source https://www.justice.gov/usam/criminal-resource-manual-610-deportations-expulsions-or-other-extraordinary-renditions