UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 99-4249

CHARLES L. DISHER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CR-98-76-C)

Submitted: August 17, 1999

Decided: September 3, 1999

Before WILLIAMS and KING, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Marshall M. Slayton, Charlottesville, Virginia, for Appellant. Robert
P. Crouch, Jr., United States Attorney, Nancy S. Healey, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Charles L. Disher appeals the district court's order affirming his
convictions by a magistrate judge of two misdemeanors, having an
open container of alcohol in a vehicle and refusing to submit to a
blood test. We affirm.

On October 11, 1998, Disher was driving in a national park when
he was stopped by a park ranger. The ranger detected the odor of
alcohol on Disher's breath and conducted field sobriety tests. After
failing the tests, Disher was taken to a nearby jail, where he refused
to submit to a blood test. Violation notices were issued that charged
him with driving on a suspended license and "open alcohol in vehi-
cle." (J.A. 7-8).

On October 13, 1998, Disher was charged in a criminal complaint
with "operat[ing] a vehicle under the influence of alcohol and refus-
[al] to submit to a breathalyzer and/or blood test in violation of Title
36 CFR . . . Sections(s) 4.23(c)(2)." (J.A. 5). An affidavit referred to
on the face of the complaint contains a narrative by the arresting offi-
cer that notes that "Disher was arrested for Driving under the Influ-
ence, Operating a vehicle on suspended license, and Open container
of alcohol in a vehicle . . . ." (J.A. 6).

Disher was arraigned, tried and sentenced on November 12, 1998.
The magistrate judge began the proceeding by stating that Disher was
"charged with operating on a suspended [sic] with an open container
of alcohol and with operating under the influence." (J.A. 11). The
magistrate judge conducted a bench trial after Disher pleaded not
guilty. The magistrate judge found Disher guilty of two charges,
refusal to submit to a blood test and having an open container of alco-
hol in his vehicle, and not guilty of driving under the influence and
driving on a suspended license. Disher did not object to the descrip-
tion of the offenses.

At sentencing later that day, defense counsel noted that neither of
the violation notices issued after Disher's arrest included a charge of

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refusal to submit to a blood test. The magistrate judge noted that the
complaint did include such a charge and, further, that Disher had been
"arraigned . . . on a refusal," to which counsel responded that "I
understand that, Your Honor." (J.A. 36). Disher was sentenced to six
months in jail on the open container conviction and three years' pro-
bation on the charge of refusal to submit to a blood test. The convic-
tions were affirmed on appeal to the district court.

Rule 10 of the Federal Rules of Criminal Procedure requires that
a defendant be apprised in open court of "the substance of the charge"
before being called upon to plead. In this appeal, Disher contends
that, despite his failure to raise the issue during trial, his conviction
for refusing to submit to a blood test should be set aside because the
magistrate judge neglected to mention the charge during the arraign-
ment prior to the trial. However, Advisory Note 3 to Rule 10 notes
that courts have held that technical noncompliance with the proce-
dural requirements of the rule does not warrant reversal of a convic-
tion if not raised before trial. See United States v. Reynolds, 781 F.2d
135, 136 n.2 (8th Cir. 1986) (absence of formal arraignment is of little
consequence as long as accused has had sufficient notice of accusa-
tion and adequate opportunity to defend himself). In Disher's case,
the charge was clearly noted on the face of the complaint, as was a
specific reference to the applicable federal regulation, 36 C.F.R.
§ 4.23(c)(2). Moreover, the parties addressed that charge through
argument and the introduction of evidence. Disher was not preju-
diced, and "[a] failure to arraign only warrants a reversal if it causes
prejudice or impairs a substantial right." United States v. Williams,
152 F.3d 294, 299 (4th Cir. 1998) (citing Garland v. Washington, 232
U.S. 642 (1914)).

Disher also contends that the open container conviction should be
set aside because he never received a copy of a citation or violation
notice for that offense, as he contends is required by Fed. R. Crim.
P. 58(b)(1). Rule 58(b)(1), however, permits the trial of a misdemea-
nor to proceed on a complaint, and it is undisputed Disher did receive
a copy of the complaint with its attached affidavit noting his arrest for
the open container violation. Moreover, he was arraigned on the open
container charge and made no objection at any time before or during
trial. As with the blood-test charge, Fisher fails to demonstrate preju-
dice, and any error is therefore harmless.

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Disher also contends that he had the option as to which test to take
after his arrest and that his offer to submit to a breathalyzer test
shields him from conviction for refusing a blood test. This argument
ignores the clear language of the regulation: "Any test or tests for the
presence of alcohol and drugs shall be determined by and adminis-
tered at the direction of an authorized person." 36 C.F.R. § 4.23(c)(3)
(1999).

For these reasons we affirm the district court's order affirming Dis-
her's convictions. 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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