Mohamed Fadul v. District of Columbia, 106 A.3d 1093

Background

On Oct. 4, 2012 officers found Mohamed Fadul asleep in the driver’s seat of a parked car with the engine idling; officers observed signs of intoxication.
An alcohol-certified officer (Carter) was summoned; Fadul failed three field sobriety tests, was arrested, and voluntarily gave a urine sample showing 0.22 g ethanol/100 mL urine.
The government produced two police radio-transmission recordings but a different radio "run" allegedly calling for an alcohol-certified officer was not produced; defense counsel said she could not hear such a call when reviewing available recordings.
Defense moved to strike testimony of the first-responding officers as a sanction for the missing recording (Jencks/Brady concern); the trial court conducted inquiry but declined to impose sanctions and proceeded to a bench trial.
The trial court convicted Fadul of DUI under D.C. Code § 50-2206.11; Fadul appealed arguing (1) failure to sanction the government for the missing radio run, (2) insufficient evidence that he "operated" or was in "physical control" of the vehicle, and (3) the statute is unconstitutionally vague.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court abused discretion by not sanctioning government for missing radio run (Jencks/Rule 16)	Fadul: court should have ordered disclosure and imposed sanctions for missing radio run; potential Jencks/Brady violation prejudiced defense	Government: Rule 16 doesn’t govern radio runs; Jencks/Rule 26.2 governs and any missing tape was not due to bad faith and unlikely to contain material statements	Court: No abuse of discretion; Rule 16 not applicable, trial court properly exercised discretion under Jencks factors and found no prejudice or bad faith
Sufficiency of evidence that Fadul "operated" or was "in physical control" of vehicle	Fadul: sleeping in parked car does not meet statute’s operation or physical control elements	Government: DC case law defines "operate"/"physical control" to include being in actual physical control capable of moving or preventing movement; sleeping in driver’s seat with engine idling suffices	Court: Evidence sufficient — being asleep in driver’s seat with engine idling meets the statute as interpreted by precedent
Whether DUI statute is unconstitutionally vague	Fadul: statute lacks definition of "operation" and mention of "driving"; he could not have fair notice his conduct was proscribed	Government: Court should apply established judicial constructions of "operate"/"physical control," giving clear standard	Court: No plain error; statute not unconstitutionally vague once read with controlling judicial interpretations (e.g., Maldonado, Goines)

Key Cases Cited

Slye v. United States, 602 A.2d 135 (D.C. 1992) (government failure to produce 911/radio calls treated under Jencks)
McCraney v. United States, 983 A.2d 1041 (D.C. 2009) (treatment of missing radio runs/Jencks issues)
McGriff v. United States, 705 A.2d 282 (D.C. 1997) (trial court discretion in sanctions where government’s failure not deliberate)
Robinson v. United States, 825 A.2d 318 (D.C. 2003) (choice of sanction under Jencks is within trial court discretion)
Woodall v. United States, 684 A.2d 1258 (D.C. 1996) (factors for imposing Jencks sanctions)
Maldonado v. District of Columbia, 594 A.2d 88 (D.C. 1991) ("operate" means actual physical control capable of moving or preventing movement)
Goines v. United States, 964 A.2d 141 (D.C. 2009) (sleeping in driver's seat with engine idling can constitute operation)
Blaize v. United States, 21 A.3d 78 (D.C. 2011) (standard for reversal on insufficiency of evidence)
Kinane v. United States, 12 A.3d 23 (D.C. 2011) (plain-error review for issues first raised on appeal)
Thomas v. United States, 914 A.2d 1 (D.C. 2006) (plain error test elements)
McNeely v. United States, 874 A.2d 371 (D.C. 2005) (due process notice requirement and vagueness analysis)
Parnigoni v. District of Columbia, 933 A.2d 823 (D.C. 2007) (statutory construction considered part of statute for vagueness review)
Anand v. District of Columbia, 801 A.2d 951 (D.C. 2002) (prior holding that OWI statute not unconstitutionally vague)