FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CAMERON REED,

Defendant-Appellant.

No. 12-10420

D.C. No.

2:11-cv-01394-

PMP-VCF-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, Senior District Judge, Presiding

Argued and Submitted

June 13, 2013—San Francisco, California

Filed August 22, 2013

Before: Diarmuid F. O’Scannlain and Milan D. Smith, Jr.,

Circuit Judges, and Michael M. Anello, District Judge.*

Opinion by Judge Anello

* The Honorable Michael M. Anello, United States District Judge for the

Southern District of California, sitting by designation.
2 UNITED STATES V. REED

SUMMARY**

Criminal Law

The panel affirmed a conviction by conditional guilty plea

to violating Nev. Rev. Stat. § 484C.110(3)(g), which

prohibits driving with over 2 ng/ml of marijuana in the blood,

assimilated into federal law under the Assimilative Crimes

Act, 18 U.S.C. § 13, in a case in which the defendant was

arrested after driving erratically on a federal road in the Lake

Mead National Recreation Area.

The panel held that assimilation of Nevada’s per se

drugged driving law was proper because although the

defendant’s conduct is punishable under the federal DUI

regulation (36 C.F.R. § 4.23(a)(1)), 36 C.F.R. § 4.2 manifests

the National Park Service’s clear intent to assimilate traffic

laws such as Nevada’s per se drugged driving law, there is a

gap in federal law with respect to punishing operators of

vehicles who exceed a per se drug limit regardless of

impairment, and assimilating the Nevada law would not

conflict with federal policy or effectively rewrite a federal

offense definition.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. REED 3

COUNSEL

Alina Maria Shell, Assistant Federal Public Defender, Las

Vegas, Nevada, for Defendant-Appellant.

Adam McMeen Flake (argued), Assistant United States

Attorney, and Nadia Janjua Ahmed, Special Assistant United

States Attorney, Las Vegas, Nevada, for Plaintiff-Appellee.

OPINION

ANELLO, District Judge:

Appellant Cameron Reed was arrested after driving

erratically on a federal road located in the Lake Mead

National Recreation Area in Nevada. Reed’s blood contained

3.7 nanograms per milliliter (ng/ml) of marijuana. Reed

pleaded guilty to violating Nev. Rev. Stat. § 484C.110(3)(g),

which prohibits driving with over 2 ng/ml of marijuana in the

blood, assimilated into federal law under the Assimilative

Crimes Act (“ACA” or “the Act”), 18 U.S.C. § 13. Reed

asserts that his conviction was improper because an

applicable federal regulation punishes his conduct, thereby

precluding assimilation of Nevada law.

We have jurisdiction pursuant to 12 U.S.C. § 1291. 

Because assimilation of Nevada law was proper, we affirm.

BACKGROUND

On March 27, 2010, a National Park Service (“NPS”)

ranger at the Lake Mead National Recreation Area observed

a vehicle traveling at a high rate of speed. The ranger paced
4 UNITED STATES V. REED

the vehicle at 40 miles per hour in a posted 15 miles-perhour-zone, and watched as it turned into the exit of a one-way

loop, passing two “Do Not Enter” signs. After initiating a

traffic stop, the ranger identified the driver as Reed. A strong

odor of burnt marijuana emanated from the vehicle, and the

ranger saw an open container of “Mike’s Hard Lemonade”

resting in the center console. Reed’s speech was slurred and

he admitted to smoking one marijuana joint and taking a sip

of alcohol while driving. The ranger administered four field

sobriety tests; Reed failed three. Reed was arrested. 

Subsequently, the ranger searched Reed’s vehicle and found

a cigarette box containing a substance he suspected to be

marijuana. Later blood tests revealed 3.7 ng/ml of

Ä9-Tetrahydrocannabinol (marijuana) and 15 ng/ml THC

carboxylic acid (marijuana metabolite) in Reed’s system.

Reed was originally charged with four federal Class B

misdemeanor offenses, including operating a motor vehicle

under the influence of drugs or alcohol in violation of

36 C.F.R. § 4.23(a)(1) (Count One), unsafe operation in

violation of 36 C.F.R. § 4.22(b)(1) (Count Two), possession

of a controlled substance in violation of 36 C.F.R.

§ 2.35(b)(2) (Count Three), and open container in violation

of 36 C.F.R. § 4.14(b) (Count Four). Later, via an amended

complaint, Reed was further charged with operating a vehicle

with an amount of marijuana in his blood in violation of Nev.

Rev. Stat. § 484C.110(3)(g) (Count Five), and operating a

vehicle with an amount of marijuana metabolite in his blood

in violation of Nev. Rev. Stat. § 484C.110(3)(h)(1) (Count

Six). The government used the ACA to assimilate the

Nevada laws into federal law.

Reed moved to dismiss the state law claims, arguing that

they were not properly assimilated under the ACA. After a
UNITED STATES V. REED 5

magistrate judge denied the motion, Reed entered conditional

guilty pleas to Count Two (unsafe operation) and Count Five

(driving with a proscribed amount of marijuana in his blood). 

The remaining claims were dismissed. Reed reserved his

right to appeal the denial of his motion to dismiss Count Five,

but waived his right to appeal any other aspect of his

conviction. On appeal, the district court affirmed, concluding

that assimilation of the Nevada law was proper.

Reed timely appealed to this Court. He asserts that his

conviction was improper because a federal regulation

punishes his conduct, thereby precluding assimilation of the

Nevada law.1

APPLICABLE LAW

I. The Assimilative Crimes Act – 18 U.S.C. § 13(a)

The ACA promotes the even-handed application of state

law to local conduct that federal law does not punish and, but

for the situs being a federal enclave, would qualify as a local

offense. United States v. Waites, 198 F.3d 1123, 1127 (9th

Cir. 2000). The Act provides:

Whoever within or upon any [federal enclave]

is guilty of any act or omission which,

although not made punishable by any act of

Congress, would be punishable if committed

 

1

 Reed also contests the constitutionality of Nevada’s per se marijuana

metabolite law, Nev. Rev. Stat. § 484.110(3)(h). We do not reach this

argument, however, because the issue is moot. Count Six, which

contained this charge, was dismissed as part of Reed’s conditional plea. 

Moreover, Reed waived his right to appeal any aspect of this charge.
6 UNITED STATES V. REED

or omitted within the jurisdiction of the State

. . . in which such place is situated, . . . shall

be guilty of a like offense and subject to like

punishment.

18 U.S.C. § 13(a). The ACA’s basic purpose is “one of

borrowing state law to fill gaps in the federal criminal law

that applies on federal enclaves.” Lewis v. United States,

523 U.S. 155, 160 (1998). In so doing, the Act “establishes

uniformity in a state’s prohibitory laws where such conduct

is not made penal by federal statutes.” United States v.

Marcyes, 557 F.2d 1361, 1364 (9th Cir. 1977). But the ACA

is not intended to make federal enclaves subject to the

entirety of the criminal law of the state in which the enclave

is located. Instead, it makes applicable only those state

criminal laws that make punishable acts or omissions that

have not been made punishable “by any enactment of

Congress.” 18 U.S.C. § 13(a).

In Lewis v. United States, 523 U.S. 155 (1998), the

Supreme Court established a two-part test for analyzing

whether a particular state criminal law is properly

incorporated into federal law under the Act. First, a court

must inquire whether the “defendant’s ‘act or omission . . .

[is] made punishable by any enactment of Congress.’” Lewis,

523 U.S. at 164 (quoting 18 U.S.C. § 13(a)). “If the answer

to this question is ‘no,’ that will normally end the matter. 

The ACA presumably would assimilate the statute.” Id. But

if the act or omission in question is punishable by some

federal enactment, a court must ask a second question: “Does

applicable federal law indicate an intent to punish conduct

such as the defendant’s to the exclusion of the particular state

statute at issue?” Id. at 166.
UNITED STATES V. REED 7

II. Title 36 of the Code of Federal Regulations

Title 36 of the Code of Federal Regulations “provide[s]

for the proper use, management, government, and protection

of persons, property, and natural and cultural resources within

areas under the jurisdiction of the National Park Service.” 

36 C.F.R. § 1.1(a). Part 4 of Title 36 (“Part 4”) regulates

vehicles and traffic safety within park areas. See 36 C.F.R.

§§ 4.1–4.31. Because the Lake Mead National Recreation

Area is federally owned land operated by the NPS, all drivers

within the park, Reed included, are subject to the traffic

regulations set forth in Part 4.

“[T]he foundation of [Part 4’s] vehicle and traffic safety

regulations[is] the nonconflicting provisions of the respective

State vehicle codes, which are adopted in § 4.2.” Vehicles

and Traffic Safety, 52 Fed. Reg. 10670-01, 10670 (Apr. 2,

1987). Section 4.2 provides:

(a) Unless specifically addressed by

regulations in this chapter, traffic and the use

of vehicles within a park area are governed by

State law. State law that is now or may later

be in effect is adopted and made a part of the

regulations in this part.

(b) Violating a provision of State law is

prohibited.

36 C.F.R. § 4.2. In its final rule commentary, the NPS

expounded on § 4.2 by stating:

[Section 4.2], which applies regardless of the

type of jurisdiction exercised by the NPS,
8 UNITED STATES V. REED

adopts State vehicle codes as the basis for the

regulation and control of traffic in park areas. 

The NPS is adopting, as if they were a part of

the regulations in Part 4, all the applicable and

nonconflicting vehicle and traffic laws of the

State and local political subdivision(s) within

whose exterior boundaries a park area or a

portion thereof is located.

Vehicles and Traffic Safety, 52 Fed. Reg. 10670-01, 10678

(Apr. 2, 1987).

36 C.F.R. § 4.23 addresses driving while under the

influence of alcohol or drugs. Specifically, § 4.23(a)(1) (the

“federal DUI regulation”) prohibits “[o]perating or being in

actual physical control of a motor vehicle” when the operator

is “[u]nder the influence of alcohol, or a drug, or drugs, or

any combination thereof, to a degree that renders the operator

incapable of safe operation.” 36 C.F.R. § 4.23(a)(1). Section

4.23(a)(2) (the “per se drunk driving regulation”) prohibits

operating a motor vehicle when “[t]he 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.” 36 C.F.R. § 4.23(a)(2).

Of particular significance to our discussion here, while

the federal DUIregulation prohibits operating a vehicle while

under the influence of alcohol or drugs to a degree that

renders the operator incapable of safe operation, the

subsequent per se drunk driving regulation codifies only a per

se alcohol provision, and does not include a corresponding

per se drug provision. In its initial and final rule

announcements of § 4.23(a), the NPS clarified that these two
UNITED STATES V. REED 9

regulations were separate and distinct offenses, rather than

alternative methods of establishing impairment:

Paragraph (a) of this regulation addresses two

individual offenses. The first is a standard

prohibition against operating a motor vehicle

while under the influence of alcohol or drugs

. . . . The second offense involves operating a

vehicle while the alcohol concentration in the

operator’s blood is 0.10 grams or more of

alcohol per 100 milliliters of blood or 0.10

grams or more of alcohol per 210 liters of

breath.

Vehicles and Traffic Safety (Final Rule), 52 Fed. Reg. 10670-

01, 10680 (Apr. 2, 1987); Vehicles and Traffic Safety

(Proposed Rule), 51 Fed. Reg. 21840-01, 21843 (June 16,

1986).

III. Nevada Revised Statutes § 484C.110

Similar to the federal regulations, Nevada law includes an

“under the influence” of drugs or alcohol law in addition to

a per se drunk driving provision. See Nev. Rev. Stat.

§ 484C.110(1)–(2). Proceeding one step further, Nevada law

promulgates a per se drugged driving provision, which

provides in relevant part that:

It is unlawful for any person to drive or be in

actual physical control of a vehicle on a

highway or on premises to which the public

has access with an amount of a prohibited

substance in his or her blood or urine that is
10 UNITED STATES V. REED

equal to or greater than: . . . [2 nanograms of

marijuana per milliliter of blood.]

Nev. Rev. Stat. § 484C.110(3)(g) (“Nevada’s per se drugged

driving law”). Because there is no federal equivalent to

Nevada’s per se drugged driving law, the government utilized

the ACA to assimilate the Nevada statute into federal law in

the amended complaint filed against Reed. Reed’s appeal

questions whether assimilation of Nevada’s per se drugged

driving law was proper.

DISCUSSION

We review de novo whether the ACA assimilates a state

law crime. See United States v. Souza, 392 F.3d 1050, 1052

(9th Cir. 2004).

I. Lewis - Step One

Lewis instructs us to first question whether Reed’s

conduct is made punishable by “any enactment of Congress.” 

Lewis, 523 U.S. at 164. An “enactment of Congress,” for

purposes of the ACA, encompasses federal regulations as

well as statutes. See United States v. Waites, 198 F.3d 1123,

1128 (9th Cir. 2000). The parties agree that the federal DUI

regulation, 36 C.F.R. § 4.23(a)(1), is the lone federal

enactment which could punish Reed’s behavior of driving

while impaired. As mentioned, this regulation prohibits

“[o]perating or being in actual physical control of a motor

vehicle” when the operator is “[u]nder the influence of

alcohol, or a drug, or drugs, or any combination thereof, to a

degree that renders the operator incapable of safe operation.” 

36 C.F.R. § 4.23(a)(1).
UNITED STATES V. REED 11

When considering Lewis’s first prong, the district court

compared Reed’s conduct to the federal DUI regulation, and

determined that the regulation punished his conduct. 

Specifically, the district court found:

Reed drove 40 miles per hour in a 15 miles

per hour zone, entered the exit of a one-way

loop, and passed two “Do Not Enter” signs. 

Reed had slurred speech and failed three Field

Sobriety Tests. Reed admitted taking a sip of

alcohol and smoking marijuana before

driving. When [the park ranger] searched

Reed’s vehicle, he found an open container of

“Mike[’]s Hard Lemonade” and 1.33 grams of

marijuana. Reed’s blood contained 3.7 ng/ml

of marijuana. The [federal DUI regulation]

punishes this conduct. Indeed, Count One of

the Amended Complaint charged Reed with

violating the [federal DUI regulation] for this

very conduct.

United States v. Reed, 878 F. Supp. 2d 1199, 1205 (D. Nev.

2012).

We agree with the district court and conclude that Reed’s

conduct is punishable under the federal DUIregulation. Reed

operated a motor vehicle in an unsafe manner while under the

influence of drugs. This conduct is directly punishable by

§ 4.23(a)(1).2 We thus proceed to the second prong of Lewis.

2 The government argues that the precise conduct in question is not

punishable by the federal DUI regulation, thereby concluding the ACA

analysis at Lewis’s first prong. See Lewis, 523 U.S. at 164. The

government reaches this result by noting that the elements of Nevada’s per
12 UNITED STATES V. REED

II. Lewis - Step Two

Once we conclude that a federal enactment punishes the

defendant’s conduct, we are instructed to consider whether

the applicable federal law “preclude[s] application of the state

law in question.” Lewis, 523 U.S. at 164. In this regard,

“[t]he primary question . . . is one of legislative intent: Does

applicable federal law indicate an intent to punish conduct

such as the defendant’s to the exclusion of the particular state

statute at issue?” Id. at 166. Properly framed, we inquire:

Does the NPS indicate an intent to punish Reed’s behavior

with the federal DUI regulation to the exclusion of Nevada’s

per se drugged driving law?

There is no “automatic general answer to this second

question.” Id. at 165. However, a state statute will not be

assimilated if, for example, (1) its application would conflict

with federal policy; (2) it would effectivelyrewrite an offense

definition that Congress carefully considered; or (3) the

federal statutes reveal an intent to occupy so much of a field

se drugged driving law differ from the elements of the federal DUI

regulation. While this observation is correct, it is not dispositive of the

issue. On the contrary, the elements of the subject laws are largely

irrelevant at Lewis’s first prong. When faced with a similar argument,

Lewis unequivocally clarified that the “precise acts” test–“which comes

close to a ‘precise elements’ test”–would “produce an ACA that is too

broad[,]” “assimilat[ing] state law even where there is no gap to fill.” Id.

at 163–64.

Furthermore, under the government’s approach, the question of

whether “the defendant’s act or omission” is “made punishable by any

enactment of Congress” could be answered without any consideration of

the defendant’s acts or omissions. This curious approach is not sanctioned

by Lewis, which clearly directs that the focus be on the “defendant’s acts

or omissions.” Id. at 168 (quoting 18 U.S.C. § 13(a)).
UNITED STATES V. REED 13

as to exclude use of the particular state statute. Id. at 164

(citations omitted).

“It seems fairly obvious that the Act will not apply where

both state and federal statutes seek to punish approximately

the same wrongful behavior–where, for example, differences

among elements of the crimes reflect jurisdictional, or other

technical, considerations, or where differences amount only

to those of name, definitional language, or punishment.” Id.

at 165. Conversely, “a substantial difference in the kind of

wrongful behavior covered (on the one hand by the state

statute, on the other, by federal enactments) will ordinarily

indicate a gap for a state statute to fill–unless Congress

through the comprehensiveness of its regulation, or through

language revealing a conflicting policy, indicates to the

contrary in a particular case.” Id. at 165–66 (citations

omitted). “The ultimate issue is whether there is a gap in

federal law that may be filled by [Nevada’s per se drugged

driving law].” Souza, 392 F.3d at 1054 (citing Lewis,

523 U.S. at 160). We answer “yes,” for several reasons.

First, the NPS’s intent with respect to gap filling is clearly

manifested in § 4.2, which automatically invites assimilation

of all nonconflicting state traffic laws. Second, the subject

laws do not seek to punish approximately the same wrongful

behavior. While there is some overlap between the conduct

proscribed by the subject laws, the generalized federal DUI

regulation does not punish the specific conduct of driving

with a certain level of drugs in one’s blood. Third,

assimilating Nevada’s per se drugged driving law would not

conflict with federal policy or effectively rewrite an offense

definition that the NPS carefully considered, nor does Part 4

of Title 36 of the Code of Federal Regulations reveal an
14 UNITED STATES V. REED

intent to occupy so much of a field as to preclude assimilation

of the per se drugged driving law.

A. Section 4.2 Manifests the NPS’s Clear Intent to

Assimilate State Traffic Laws Such As Nevada’s Per

Se Drugged Driving Law.

As legislative intent is “primary” to resolution of Lewis’s

second step, we begin there. See Lewis, 523 U.S. at 166. Part

4 of Title 36 of the Code of Federal Regulations presents a

unique statutory framework with respect to gap filling. Under

§ 4.2, the federal traffic regulations explicitly incorporate all

state vehicle and traffic laws, “[u]nless specifically

addressed” by the federal regulations. 36 C.F.R. § 4.2. As

the legislative history states, “[t]he NPS intends that the

foundation of its vehicle and traffic safety regulations be the

nonconflicting provisions of the respective State vehicle

codes, which are adopted in § 4.2.” 52 Fed. Reg. 10670-01,

10670 (Apr. 2, 1987) (emphasis added). Accordingly, “[t]he

NPS is adopting, as if they were a part of the regulations in

Part 4, all the applicable and nonconflicting vehicle and

traffic laws of the State . . . within whose exterior boundaries

a park area . . . is located.” Id. at 10678.3

The NPS’s intent could not be clearer: all nonconflicting

state traffic laws apply on federal enclaves. In lieu of

3 A review of caselaw demonstrates that § 4.2 is generally a standalone

vehicle through which the United States assimilates state traffic laws into

federal law. In these cases, the ACA is generally not even invoked. See,

e.g., United States v. Bibbins, 637 F.3d 1087, 1088 (9th Cir. 2011)

(incorporating Nev. Rev. Stat. § 482.275, obstructing a license plate,

directly under § 4.2); United States v. Bohn, 622 F.3d 1129, 1133 (9thCir.

2010) (incorporating a Washington law prohibiting driving a motorcycle

without wearing a helmet under § 4.2).
UNITED STATES V. REED 15

promulgating dozens, if not hundreds, of traffic laws, the NPS

was satisfied to issue but a handful, leaving nonconflicting

state law to fill the gaps. We thus proceed to consider

whether Nevada’s per se drugged driving law is “specifically

addressed” by—such that it “conflicts” with—Part 4’s

regulations.

As detailed above, Part 4 does not codify a per se drugged

driving regulation, nor does it otherwise “specifically

address” such a provision. Consequently, a plain reading of

Part 4 demands a finding that Nevada’s per se drugged

driving law does not conflict with Part 4’s regulations.

Reed argues that the absence of a per se drugged driving

regulation indicates the NPS’s deliberate intent to preclude

federal prosecutions of operators who drive with per se levels

of drugs in their system. Reed presumes this intent by

invoking the principle of statutory construction—known as

the Russello presumption—that where “Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposefully in the disparate

inclusion or exclusion.” Russello v. United States, 464 U.S.

16, 23 (1983). In this case, while Part 4’s federal DUI

regulation addresses drugs, the accompanying per se

regulation does not.

We find the Russello presumption unpersuasive in this

context. First, because the NPS’s intent is clear, we need not

attempt to infer it via the Russello presumption. As discussed

previously, the NPS clearly understands that there are gaps in

its regulations and clearly incorporates all state vehicle and

traffic laws to fill those gaps. Applying the Russello

presumption would eviscerate the basic structure of Part 4.
16 UNITED STATES V. REED

Second, there is strong evidence to support a finding that

the NPS did not even consider adopting a per se drugged

driving offense, thereby rebutting the Russello presumption.4

Indeed, Part 4’s legislative history makes no mention of a

proposed, yet rejected, per se drugged driving regulation. 

This omission is unsurprising considering that not a single

state had enacted a per se drugged driving law when Part 4

was adopted in 1987.

To ready our historical lens, we ask the following: What

was the NPS’s intent in adopting an “under the influence” of

alcohol or drugs regulation, and a per se drunk driving

regulation, but not a per se drugged driving regulation? The

historical progression of “under the influence” and per se

drunk driving laws versus per se drugged driving laws

provides a logical explanation.

By 1966, nearly all states prohibited motorists from

driving a motor vehicle while under the influence of drugs or

alcohol.5 Similarly, per se drunk driving laws have been on

the books since the 1960s. “In the late 1960s and early

1970s, States began adopting per se laws that defined the

4 The Supreme Court has held that the expressio unius est exclusio

alterius statutory principle does not apply “unless it is fair to suppose that

Congress considered the unnamed possibility and meant to say no to it.” 

Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013) (quotations

and citations omitted). The expressio unius canon creates a presumption

that “when a statute designates certain persons, things, or manners or

operation, all omissions should be understood as exclusions.” United

States v. Fuller, 531 F.3d 1020, 1027 (9th Cir. 2008). This canon is

directly related to the Russello principle, and courts at times use them

interchangeably. See id.

5

See Tina Wescott Cafaro, Slipping Through The Cracks: Why Can’t

We Stop Drugged Driving?, 32 W. New Eng. L. Rev. 33, 41 (2010).
UNITED STATES V. REED 17

offense in terms of the BAC level.”6In the 1980s alone,

“[a]bout 1200 anti-drunk driving laws were passed as a result

of political pressure . . . .”7

However, in 1987, the year Part 4 was adopted, no State

had a per se drugged driving law.8“Drug per se laws,

analogous to illegal per se laws for alcohol, are a relatively

new phenomenon in the United States. Arizona was the first

State to adopt a drug per se law, in 1990 . . . .”9

With this historical backdrop, it becomes clear why the

NPS would adopt an “under the influence” of alcohol or

drugs regulation, and a per se drunk driving regulation, but

not a per se drugged driving regulation. “Under the

influence” statutes were commonplace and the national

conversation regarding per se drunk driving laws was loud,

but the discussion involving per se drugged driving laws was

not yet ripe.10 For these reasons, we are satisfied that the

6 U.S. Dep’t of Transp., Drug Per Se Laws: A Review of Their Use in

States 4 (2010) [hereinafter Drug Per Se Laws], available at

www.nhtsa.gov/staticfiles/nti/impaired_driving/pdf/811317.pdf.

 

7

John Hoffman, Implied Consent With A Twist: Adding Blood to New

Jersey’s ImpliedConsent Law andCriminalizing Refusal Where Drinking

and Driving Results in Death or Serious Injury, 35 Rutgers L.J. 345, 345

n.1 (2003) (citing Alan Cavaiola & Charles Wuth, Assessment and

Treatment of the DWI Offender 24 (2002)).

 

8

See Drug Per Se Laws, supra note 6, at 6 and Table 1.

 

9

Id. at 6.

10 In addition, the task of enumerating a per se drugged driving

regulation absent guidance from any existing state law would be difficult,

to say the least. It is fairly simple to promulgate an “under the influence”
18 UNITED STATES V. REED

Russello presumption is not applicable here. What remains

is the NPS’s codified intent for all nonconflicting state traffic

laws, whether currently in effect or later placed into effect, to

apply on federal enclaves.

B. The Subject Laws Do Not Punish Approximately

the Same Wrongful Behavior Because the Federal

Regulations Do Not Punish the Specific Conduct of

Driving with a Certain Level of Drugs in One’s Blood.

We next consider whether the subject laws seek to punish

approximately the same wrongful behavior. Lewis advises

that this can occur where “differences among elements of the

crimes reflect jurisdictional, or other technical,

considerations, or where differences amount only to those of

name, definitional language, or punishment.” Lewis,

regulation. Adopting a per se regulation is another matter entirely. Even

a brief glance at Nevada’s per se drugged driving law (Nev. Rev. Stat.

§ 484C.110(3)) demonstrates the highly technical nature of this endeavor. 

Nevada’s statute lists out 11 prohibited substances and specifies the

unique threshold level for each in terms of nanograms per milliliter in both

urine and blood. Researching these substances and deciphering the

threshold level for each undoubtedly required much effort. In light of this

arduous task, it stands to reason that the NPS would pass on being the first

entity to formulate such a regulation. Instead, as would appear to be its

intent, the NPS was satisfied to allow any later-adopted state laws to fill

this gap. See 36 C.F.R. § 4.2. The Supreme Court has recognized that

Congress enacted the ACA to respond to federal courts’ inability to

declare crimes—as state courts could—according to the “general

common-law.” United States v. Press Publ’g Co., 219 U.S. 1, 12 (1911);

see Williams v. United States, 327 U.S. 711, 720 n.19 (1946); Lewis,

523 U.S. at 160. Though today’s decision responds to Nevada’s

legislative, rather than judicial declaration, it is consistent with the idea

that Congress enacted the ACA to permit “local statutes to fill in gaps in

the Federal Criminal Code where no action of Congress has been taken to

define the missing offenses.” Williams, 327 U.S. at 719.
UNITED STATES V. REED 19

523 U.S. at 165 (citing United States v. Adams, 502 F. Supp.

21 (S.D. Fla. 1980)). A review of Adams assists in

crystallizing this rule.

In Adams, the defendant was apprehended for carrying a

concealed revolver into a federal courthouse. He was

charged, pursuant to the ACA, under a Florida statute making

it a felony to carry a concealed firearm. He challenged his

indictment under the ACA because a federal regulation

specifically made it a misdemeanor to carry a concealed

weapon onto federal property. The district court found that

“[t]he act prohibited under both the Florida statute and the

federal regulation is the carrying of a concealed weapon. 

There can be no doubt that this is the ‘precise act’ which both

laws prohibit.” Adams, 502 F. Supp. at 24. It was

“immaterial” that a violation of the federal regulation

constituted a misdemeanor while a violation of the Florida

statute was a felony. Id. at 25. Because the federal regulation

covered the “specific act” involved, the court refused to

assimilate the Florida statute. Id.

Here, Reed argues that Nevada’s per se drugged driving

law and the federal DUI regulation are not distinct offenses

but rather two different modes of proving the same crime. He

posits that the Nevada law simply makes it easier for the

prosecution to prove its case.

We disagree. While there is undoubtedly some overlap in

the type of behavior punished by the subject laws, the

differences are not trivial and relate to the specific conduct

proscribed, unlike in Adams. The federal DUI regulation

punishes driving unsafely because of impairment. Nevada’s

per se drugged driving law punishes driving after ingesting a

specific amount of drugs, regardless of impairment. This
20 UNITED STATES V. REED

distinction makes all the difference. The federal DUI

regulation, standing alone, cannot punish drivers who manage

to drive safely even after consuming an excessive amount of

marijuana. Conversely, Nevada’s per se drugged driving law,

standing alone, cannot punish drivers who drive unsafely

even if impaired, so long as they have consumed only trace

amounts of marijuana. Only together do these laws punish

both those who drive unsafely because of impairment and

those who drive “safely” even while daring to test the limits

of their cognitive and kinesthetic abilities. Accordingly,

since these laws govern, and thereby seek to regulate,

different behaviors, it cannot be said that per se laws exist

simply to make prosecuting impaired drivers an easier

endeavor.

This Court’s ruling in United States v. Souza, 392 F.3d

1050 (9th Cir. 2004), is instructive. There, the defendant

forcefully entered and removed two bags from a vehicle

parked in Hawaii Volcanoes National Park and was charged

under the ACA, assimilating Haw. Rev. Stat. § 708-836.5,

which punishes unauthorized entry into a motor vehicle with

the intent to commit a crime against a person. Souza,

392 F.3d at 1052. The Court found that several federal

breaking-and-entering statutes “squarely” covered the

defendant’s conduct. Id. at 1053. Nonetheless, we

determined that “a gap remains, because there is no

applicable federal provision that punishes specifically the

unauthorized entry into a motor vehicle . . . .” Id. at 1054. 

“Mere general prohibitions against tampering, vandalism,

trespassing, and theft do not rise to the level of manifesting a

federal policy against assimilating a statute that punishes the

specific conduct of unauthorized entry into a motor vehicle.” 

Id. (emphasis added). Because a gap existed, and because

“[t]here [was] no indication of an overriding federal policy
UNITED STATES V. REED 21

with which the [Hawaii] statue interfere[d],” the Hawaii

statute was properly assimilated. See id. at 1054–55.

Similarly here, Nevada’s per se drugged driving law

properly fills a gap in federal law by punishing the specific

conduct of driving with a certain level of drugs in the blood. 

Further, the mere presence of the federal DUIregulation does

not manifest a federal policy against assimilating Nevada’s

per se drugged driving law, particularly in light of the NPS’s

clear intent to assimilate all nonconflicting laws as well as the

inclusion of the per se drunk driving regulation.

Along these same lines, the NPS’s adoption of the per se

drunk driving regulation further belies Reed’s argument that

the federal DUIregulation covers the same wrongful conduct. 

As discussed previously, the NPS expressly clarified, when

promulgating § 4.23(a), that it considered the DUI regulation

and the per se drunk driving regulation to be “two individual

offenses,” not alternative methods of establishing

impairment. See 52 Fed. Reg. 10670-01, 10680 (Apr. 2,

1987). This suggests that the NPS would find more than

“mere jurisdictional, technical, or definitional differences

between the statutes.” Souza, 392 F.3d at 1053. Likewise, it

follows that the NPS would deem Nevada’s per se drugged

driving law separate and distinct from the federal DUI

regulation.

These differences “in the kind of wrongful behavior

covered (on the one hand by the state statute, on the other, by

federal enactments) will ordinarily indicate a gap for a state

statute to fill–unless [the NPS] . . . indicates to the contrary in

a particular case.” Lewis, 523 U.S. at 165–66 (citations

omitted). As set forth previously, while the NPS has not

indicated any intent to preclude prosecution of drivers who
22 UNITED STATES V. REED

violate a state’s per se drugged driving law, it has specifically

codified its intent to incorporate all nonconflicting state

traffic laws into Part 4 of Title 36 of the Code of Federal

Regulations. Thus, by all accounts, assimilation of Nevada’s

per se drugged driving law is proper.

Finally, Reed argues that the subject laws seek to punish

approximately the same wrongful conduct because they seek

to curtail the same social harm, i.e., the public safety

concerns raised by impaired drivers. This argument is not

persuasive. Neither Lewis, nor any known ACA authority,

requires a court to compare the social harms addressed when

considering whether the subject laws punish the same

conduct.11 Such a requirement would severely limit the ACA

because many laws, whether directly or indirectly, attempt to

11 The word “harm” appears only once in Lewis outside of direct

quotations of state and federal murder statutes. The sole reference comes

within the Court’s discussion of the proper interpretation of the ACA’s

“any enactment” language. The Court notes,

a literal interpretation of the words “any enactment”

would leave federal criminal enclave law subject to

gaps of the very kind the Act was designed to fill. The

Act would be unable to assimilate even a highly

specific state law aimed directly at a serious, narrowly

defined evil, if the language of any federal statute,

however broad and however clearly aimed at a different

kind of harm, were to cover the defendant’s act. Were

there only a state, and no federal, law against murder,

for example, a federal prohibition of assault could

prevent the state statute from filling the obvious

resulting gap.

Lewis, 523 U.S. at 161 (italics in original; underline added). Clearly,

Lewis’s consideration of “harm” cannot be stretched to subsume the line

of reasoning offered by Reed here.
UNITED STATES V. REED 23

curtail the same social harm. For example, speed limits and

distracted driving laws seek to address the harm of vehicle

collisions. But it cannot reasonably be said that the presence

of one in the federal regulations would prevent assimilation

of the other. In sum, the social harm sought to be addressed

plays no substantial role in determining whether two laws

govern separate behavior. In no helpful way does the harm

addressed indicate the conduct proscribed.

III. The Remaining Lewis Considerations Favor

Assimilation

As mentioned, Lewis provides that a state statute will not

be assimilated if, for example, (1) application of the state

statute would conflict with federal policy; (2) application of

the statute would effectivelyrewrite an offense definition that

Congress carefully considered; or (3) the federal statutes

reveal an intent to occupy so much of a field as to exclude use

of the particular state statute. Lewis, 523 U.S. at 164. Much

of the preceding analysis directly touches on these examples,

but it bears specific mention that (1) Reed cites no federal

policy with which Nevada’s per se drugged driving law could

conflict; (2) it is uncontested that assimilating Nevada’s per

se drugged driving law would not effectively rewrite an

offense definition that the NPS carefully considered; and (3)

the NPS has not indicated an intent to occupy the entire field

of driving with a certain level of drugs in the blood. To the

contrary, as set forth above, the NPS intentionally left gaps in

Part 4 to be filled by nonconflicting state law.

In sum, because there is no indication of an overriding

federal policy with which Nevada’s per se drugged driving

law interferes, see Souza, 392 F.3d at 1054–55, and because

there is a gap in federal law with respect to punishing
24 UNITED STATES V. REED

operators of vehicles who exceed a per se drug limit

regardless of impairment, see id. (citing Lewis, 523 U.S. at

160), we agree with the district court that there is a gap in

federal law which may be properly filled by Nevada’s per se

drugged driving law.

AFFIRMED.