                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 12-10420
                Plaintiff-Appellee,
                                                     D.C. No.
                      v.                          2:11-cv-01394-
                                                   PMP-VCF-1
 CAMERON REED,
            Defendant-Appellant.                     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-per-
hour-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 DUI regulation 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 DUI regulation. 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 effectively rewrite 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 (9th Cir.
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.”6 In 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 Implied Consent Law and Criminalizing 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 DUI regulation 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 DUI regulation 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 effectively rewrite 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.
