UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 98-4286

BARRY L. DARAS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-98-79)

Submitted: September 29, 1998

Decided: October 16, 1998

Before ERVIN and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Richard E. Gardiner, Fairfax, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Jonathan R. Barr, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Barry Daras appeals from a district court order affirming a magis-
trate judge's judgment order finding Daras guilty, following a bench
trial, of driving under the influence of alcohol and with a breath alco-
hol content of .08 grams or above, in violation of 18 U.S.C. § 13
(1994) (assimilating Virginia Code § 18.2-266), and of speeding, in
violation of 32 C.F.R. § 634.25(f) (1998), (assimilating Virginia Code
§ 46.2-870). The infractions occurred on August 24, 1997, around
2:50 a.m., at Ft. Belvoir, a military installation in Virginia. On that
date, Military Police Officer Sean Grier observed Daras drive his
vehicle through a posted 35 mph zone of the military base. Grier used
a radar detection device to measure Daras' speed at 56 mph, and sub-
sequently stopped him for speeding.

When Grier approached Daras, he noticed that Daras' eyes were
bloodshot and that he appeared to be confused. He smelled the odor
of alcohol on Daras' breath and noticed an open container of beer in
the vehicle. Grier testified that Daras had difficulty getting his driv-
er's license out of his wallet and that his speech was somewhat
slurred. Daras told Grier that he had "had a few drinks at the club."

Grier then administered three pre-exit field sobriety tests: the finger
count, the alphabet test, and the counting test. Daras was unable to
perform two of the three tests accurately. Grier then asked Daras to
exit his vehicle. He conducted three post-exit field sobriety tests: the
walk and turn test, stand on one leg test, and the horizontal gaze nys-
tagmus test of involuntary eye movement. Grier testified that Daras
did poorly on these tests and that the results convinced him that Daras
was under the influence of alcohol. Accordingly, he arrested Daras
and took him to the military police station, where he used a breatha-
lyser machine called the "Intoxilyzer 5000" to take a sample of Daras'
breath. The machine reflected that Daras' breath alcohol content was
.10 grams per 210 liters of breath.

On appeal, Daras challenges the admissibility of the breath test, the
field sobriety tests, and the evidence offered by the Government to
prove that Grier's radar detection unit was properly calibrated. He

                     2
alleges that without such evidence, the evidence is insufficient to sup-
port his convictions. We review the magistrate judge's evidentiary
rulings for an abuse of discretion. See Benedi v. McNeil-P.P.C., Inc.,
66 F.3d 1378, 1383 (4th Cir. 1995). We must affirm the convictions
if, viewing the evidence and inferences in the light most favorable to
the government, substantial evidence supports them. See United
States v. Singh, 54 F.3d 1182, 1186 (4th Cir. 1995).

Daras contends that the breath test should not have been admitted
because the Government failed to present any evidence that the Intox-
ilyzer 5000 was a scientifically reliable device. He avers that the trial
court should have required the Government to prove the scientific
validity of the methodology by which the device measures blood alco-
hol content, using the standards for assessing the reliability of scien-
tific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 592-93 (1993). But Daubert merely requires that
the proffered scientific evidence be relevant and reliable. Benedi, 66
F.3d at 1384. Daras does not dispute that the evidence is relevant.
Moreover, the reliability of the methodology, that is, the scientific
technique by which breathalysers measure breath alcohol content, is
well established. See California v. Trombetta , 467 U.S. 479, 489
(1984) (recognizing that accuracy of Intoxilyzers has been certified
by the National Highway Traffic Safety Administration (NHTSA)
since 1973); United States v. Brannon, 146 F.3d 1194, 1196 (9th Cir.
1998) (same); United States v. Reid, 929 F.2d 990, 994 (4th Cir.
1991) (stating that breathalyser is the "best means of obtaining evi-
dence of the breath alcohol content"). We note Daras' contention that
our comment in Reid has no bearing on this case because it related
to breathalysers in general and not specifically to the Intoxilyzer
5000. While Daras presents no reason to conclude that different
breathalyser machines use a different scientific methodology, we note
that the device used in Brannon was the same type of breathalyser
used in this case, the Intoxilyzer 5000. See Brannon, 146 F.3d at 1195.1
_________________________________________________________________
1 Many federal courts hold that Daubert is limited to cases involving
novel, unique, or untested scientific evidence. See Thornton v. Caterpil-
lar, Inc., 951 F. Supp. 575, 578 (D.S.C. 1997); Waitek v. Dalkon Shield
Claimant's Trust Fund, 934 F. Supp. 1068, 1087-89 n.10 (N.D. Iowa
1996). We need not decide in this case whether Daubert's application is
so limited, or whether breathalysers are novel, unique, or untested scien-
tific evidence because we find that the breathalyser used in this case was
both relevant and reliable.

                    3
Daras further avers that the breathalyser results were inadmissable
because the Government failed to comply with an allegedly assimi-
lated Virginia statutory provision requiring proof that any breath test
used by the prosecution be conducted by a person with proper training
using equipment approved by the Virginia Division of Forensic Sci-
ence. See Va. Code Ann. § 18.268.9. A federal prosecution under the
Assimilative Crimes Act "assimilates state substantive law pertaining
to the elements of an offense and its punishment. It does not generally
adopt state procedure or rules of evidence." See United States v.
Price, 812 F.2d 174, 175 (4th Cir. 1987). Accordingly, courts have
held that the failure to follow state procedures relating to the proper
administration of breathalysers goes to the weight, and not the admis-
sibility, of the test. See Brannon, 146 F.3d at 1196; United States v.
Sauls, 981 F. Supp. 909, 911 (D. Md. 1997).

We note alternatively, that the record in this case indicates that the
Government demonstrated the reliability of the equipment and the
proper administration of the test. It has already been established that
the Intoxilyzer 5000 is a scientifically reliable device for measuring
breath alcohol content. Further, the Government submitted into evi-
dence a printout by the machine itself which stated that the machine
had been tested and found to be accurate by the Division of Forensic
Science on May 23, 1997, approximately three months prior to the
date the test was conducted. Officer Grier also testified that he was
a certified operator of the machine and that he tested it immediately
before Daras' breath test to ensure that it was working properly at the
time he administered it. Finally, Daras concedes that Grier has been
properly trained to operate the machine, and identifies no error com-
mitted in the performance of the test. Accordingly, we find that the
magistrate judge properly admitted and relied on the results of the
breathalyser test.

Daras next challenges the admissibility of the field sobriety tests,
arguing that the Government again failed to show the scientific reli-
ability of such tests under Daubert. With the exception, however, of
the horizontal gaze nystagmus (HGN) test, the field sobriety tests
were not scientific, as they involved no methodology but rather objec-
tive observations of an individual's performance on simple psycho-
motor tests. There was no need for any expert testimony regarding
these tests. See Hulse v. State, 961 P.2d 75, 93 (Mont. 1998) (recog-

                    4
nizing that the HGN is distinguishable from other field sobriety tests
because it is a scientific test). As for the HGN, we need not decide
whether such tests are scientifically reliable, 2 because the results of
the breathalyser, the remaining field sobriety tests, and Officer Grier's
testimony were more than adequate to support Daras' conviction.

Finally, Daras contends that the trial court erred by admitting a
Certificate of Calibration attesting to the accuracy of the radar unit
used by Officer Grier, and by admitting a Certificate of Accuracy
attesting to the accuracy of the 35 mph tuning fork used to calibrate
the radar unit. The Government also presented, however, a Certificate
of Accuracy for a 65 mph tuning fork which was also used to cali-
brate the radar unit. Daras raises no objection to the admission of this
evidence which, by itself, was sufficient to establish the accuracy of
the radar unit and support his speeding conviction. See United States
v. O'Shea, 952 F. Supp. 700, 703 (D. Colo. 1997). Moreover, the
Government correctly points out that the officer's visual estimate is
also sufficient, by itself, to support a conviction. See United States v.
Wornom, 754 F. Supp. 517, 519 (W.D. Va. 1991). We therefore
affirm the order of the district court. 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
_________________________________________________________________
2 For a survey of the case law discussing the reliability of such tests,
see State v. O'Key, 899 P.2d 663 (Or. 1995).

                     5
