(a) Operating or being in actual physical control of a motor vehicle is prohibited while:
(1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or
(2) The 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. Provided however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph.
(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.
(c) Tests. (1) At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the breath, saliva, or urine for the purpose of determining blood alcohol and drug content.
(2) Refusal by an operator to submit to a test under paragraph (c)(1) is prohibited and proof of refusal may be admissible in any related judicial proceeding.
(3) Absent exigent circumstances, an operator cannot ordinarily be required to submit blood samples for the purpose of determining blood alcohol and drug content unless it occurs through a search warrant. An authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section shall get a search warrant, except when exigent circumstances exist, to obtain any blood samples from the operator for the purpose of determining blood alcohol and drug content.
(4) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.
(5) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.
(d) Presumptive levels. (1) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph (a)(1) of this section. If the alcohol concentration in the operator's blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (a)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol.
(2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof.
[52 FR 10683, Apr. 2, 1987, as amended at 68 FR 46479, Aug. 6, 2003; 83 FR 26595, June 8, 2018]
Notes of Decisions
State, Dep't of Motor Vehs. & Pub. Saf. v. Lovett, 874 P.2d 1247 (Nev. 1994).
· cites it 8× “On May 6, 1991 National Park Service Ranger Ryan Regnell ("Regnell") arrested Respondent Robert Edward Lovett ("Lovett") for operating a motor vehicle while under the influence of alcohol in the Lake Mead National Recreation Area ("LMNRA"), in violation of 36 C.F.R. § 4.23…”
United States v. Coleman, 750 F. Supp. 191 (W.D. Va. 1990).
· cites it 16× “Waugh Crigler of operating a motor vehicle while under the influence of an alcoholic beverage in violation of 36 C.F.R. § 4.23 (a)(1) (1989). The defendant challenges two aspects of Magistrate Cri-gler’s ruling in her case.”
United States v. Nachtigal, 507 U.S. 1 (1993).
· cites it 4× “Respondent Jerry Nachtigal was charged with operating a motor vehicle in Yosemite National Park while under the influence of alcohol, in violation of 36 CFR §§ 4.23 (a)(1) and (a)(2) (1992). Driving under the influence (DUI) is a class B misdemeanor and carries a maximum penalty…”
Missouri v. McNeely, 133 S. Ct. 1552 (2013).
“4(b)(1)(i)-(ii) ; 36 C.F.R. § 4.23 (a)(2). In addition, 32 States and the District of Columbia have adopted laws that impose heightened penalties for operating a motor vehicle at or above a BAC of 0.”
United States v. Kristen Smith, 701 F.3d 1002 (4th Cir. 2012).
· cites it 5× “The underlying unlawful act was an alleged violation of 36 C.F.R. § 4.23 (a)(2), which provides that *1005 “[operating or being in actual physical control of a motor vehicle is prohibited while .”
United States v. Stanton, 501 F.3d 1093 (9th Cir. 2007).
· cites it 4× “08 grams or more, in violation of 36 C.F.R. § 4.23 (a)(2), and Count Three charged him with speeding, in violation of 36 C.”
United States v. Carly Ahlstrom, 530 F. App'x 232 (4th Cir. 2013).
· cites it 15× “ELLEN LIPTON HOLLANDER, District Judge: Following a bench trial conducted by a federal magistrate judge, Carly Ahlstrom was convicted of one count of driving while intoxicated, in violation of 36 C.F.R. § 4.23 (a)(2). The district court affirmed the conviction.”
United States v. Harry Lynn Hall, 979 F.2d 320 (3rd Cir. 1992).
· cites it 6× “Hall claimed that driving while intoxicated on lands under the jurisdiction of the National Park Service was already prohibited by a federal regulation, 36 C.F.R. § 4.23 , and thus the ACA could not apply.”
United States v. Foster, 829 F. Supp. 2d 354 (W.D. Va. 2011).
· cites it 14× “Foster (“Foster”) was charged with speeding on the Blue Ridge Parkway and a violation of 36 C.F.R. § 4.23 (a)(1), which prohibits operating or being in actual physical control of a motor vehicle while under the influence of alcohol to a degree that renders the operator incapable…”
United States v. McFarland, 445 F.3d 29 (1st Cir. 2006).
· cites it 4× “08% and while he was under the influence of alcohol to a degree that rendered [him] incapable of safe operation of said vehicle,” see 36 C.F.R. § 4.23 (a), a Class B Misdemeanor.”
United States v. Jackson, 470 F. Supp. 2d 654 (S.D. Miss. 2007).
· cites it 13× “Jackson appeals his conviction for driving under the influence of alcohol in violation of 36 C.F.R. § 4.23 by challenging the sufficiency of the evidence underlying that conviction.”
— 36 C.F.R. § 4.23(a)(1) — 4 cases
— 36 C.F.R. § 4.23(a)(2) — 2 cases
— 36 C.F.R. § 4.23(c)(2) — 1 case
— 36 C.F.R. § 4.23(c)(3) — 1 case
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