UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4135

WALTER O. CRAWFORD, III,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Jerome B. Friedman, District Judge.

(CR-97-60)

Submitted: July 7, 1998

Decided: July 31, 1998

Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Brian Donnelly, Virginia Beach, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, Damon A. King, Special Assistant

United States Attorney, Fort Eustis, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Walter O. Crawford, III, was convicted of driving under

the influence of alcohol, in violation of 18 U.S.C.§ 13 (1994), assimilating Va. Code Ann. § 18.2-266 (Michie 1997), and refusing to submit to a breath, blood, or urine test, in violation of 18 U.S.C. § 3118

(1994). On appeal, Crawford alleges that the district court erroneously

admitted evidence of his refusal to take a post-arrest breathalyzer test

in violation of state law and that his sentence is in violation of state

and federal law. Finding no reversible error, we affirm.

A military policeman ("MP") stopped Crawford after he observed

Crawford driving erratically within the limits of Fort Eustis, a federal

military reservation. The MP noticed a strong smell of alcohol on

Crawford's breath and administered three field sobriety tests, all of

which Crawford failed. The MP offered Crawford a preliminary

breath test, which he refused. Crawford was then transported to the

military police station where he was advised of the implied consent

statute and offered a breath or blood test. Crawford refused both. At

a bench trial before a federal magistrate, the Government introduced,

over defense objection, evidence of Crawford's refusal to submit to

chemical tests. Crawford was convicted and sentenced to a $500 fine

and three years of supervised probation. As a special condition of probation, Crawford was prohibited from operating a motor vehicle on

a public highway for a period of three years.

Decisions regarding the admission or exclusion of evidence are

committed to the sound discretion of the trial court and will not be

reversed absent an abuse of that discretion, and we find no such abuse

here. See United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993).

Crawford alleges that the Assimilative Crimes Act ("ACA"), 18

U.S.C. § 13 (1994), also assimilates the Virginia statute that prohibits

a prosecutor from introducing evidence that the defendant refused a

breath test during a prosecution for driving under the influence.1 We

disagree.

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1 See Va. Code Ann. § 18.2-268.10 (Michie 1997).

 2
It is well-settled that the ACA assimilates for federal prosecutions

a state's substantive law, but generally does not use state procedural

law or its rules of evidence. See United States v. Price, 812 F.2d 174,

175 (4th Cir. 1987); Kay v. United States, 255 F.2d 476, 479 (4th Cir.

1958). We find that the statute upon which Crawford relies is clearly

an evidentiary rule. Moreover, there is no need to look to state law

in the present case because 18 U.S.C. § 3118(b) (1994) expressly

allows for the admission of the challenged evidence.

Contrary to Crawford's assertions, we find nothing in federal or

state law which prohibited the magistrate judge from restricting his

driving privileges as a special condition of probation. Federal courts

may impose any condition on probation so long as it is reasonably

related to the factors set forth in 18 U.S.C. § 3553(a) (1994). See 18

U.S.C. § 3563(b). In the present case, we find that the magistrate

judge properly considered the factors required under§ 3553(a), and

the restriction imposed does not last longer than the probationary

period.2 Moreover, the restriction was not imposed as a fine, but

rather as a condition of probation.

We therefore affirm Crawford's convictions and sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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2 We note that while the restriction seems harsh on the surface, the

magistrate court was faced with an individual who had had four convictions for driving under the influence in the last six years and was on probation for one of those convictions at the time of the instant offense.

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