Opinion
Court of Appeals No. A-8744.
September 28, 2005.
Appeal from the District Court, First Judicial District, Juneau, Peter B. Froehlich, Judge. Trial Court Nos. 1JU-02-1125 CR.
Campbell Jackson, Law Offices of John M. Rice, P.C., Juneau, for the Appellant.
Robyn L. Carlisle, Assistant City and Borough Attorney, and John Hartle, City and Borough Attorney, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Shari A. Jensen appeals her conviction for driving while intoxicated. On appeal, she claims that the district court erred by excluding the audiotape of the breath test processing, and by ruling that Jensen could not mention the margin of error of the Intoximeter 3000. We conclude that Jensen has not shown that any error occurred. Accordingly, we affirm her conviction.
Former Code, City and Borough of Juneau § 72.10.010(a)(1) (2) (2001).
Facts and proceedings
At 2:52 a.m. on September 1, 2002, a Juneau police officer stopped Jensen after observing her driving erratically. When he contacted Jensen, he noticed that she had bloodshot, watery eyes, and that she swayed while standing. After Jensen failed four of five field sobriety tests, she was arrested for driving while intoxicated. An Intoximeter 3000 test showed that her breath alcohol content was 0.10 percent (the Juneau ordinance under which Jensen was charged penalized driving with a blood alcohol content of .08 percent). Following a jury trial, Jensen was convicted of this offense.
Before trial, the court granted the City and Borough of Juneau a protective order prohibiting evidence on the Intoximeter's margin of error. The court also excluded the audiotape of Jensen's breath test processing.
Discussion Did the court err when it excluded the audiotape of the DWI processing?
Jensen claims that District Judge Peter B. Froehlich erred when he excluded the audiotape of the breath test processing. During trial, Jensen sought to have the tape admitted to show that the officer conducting the test did not watch her closely during the fifteen-minute observation period. Jensen also claimed that the tape recording supported the inference that she was not under the influence because she did not sound intoxicated. The prosecutor objected to the tape on the grounds that Jensen talked constantly during the fifteen-minute waiting period and made nothing but self-serving statements about her good character. According to the prosecutor, Jensen said that she was a good person, that she had never been arrested for drunk driving before, that the arrest would ruin her life, and that she was on a corporation's board of directors. Jensen did not contest this characterization of the audiotape. Judge Froehlich excluded the audiotape under Evidence Rule 403 because its potential for prejudice outweighed its probative value. He also excluded Jensen's statements on the tape after ruling that they were inadmissible hearsay.
On appeal, Jensen does not address Judge Froehlich's rulings. Although she cites Denison v. Anchorage for the proposition that a defendant may offer relevant evidence tending to indicate a potential for error in a breath test, she ignores an important part of the reasoning in that case — reversible error occurred because the government advanced no legitimate purpose for exclusion of Denison's evidence.
630 P.2d 1001 (Alaska App. 1981).
Denison, 630 P.2d at 1003-04.
In Denison, the district court precluded Denison from presenting a videotape made by the police following her arrest, and from presenting witnesses who would have testified about how much alcohol Denison had consumed prior to her arrest. The district court held that "non-technical evidence of actual sobriety offered as proof of the inaccuracy of a breathalyzer result is inadmissible in a case involving a charge of driving with a blood alcohol level of 0.10 percent or greater unless technical evidence that the test was inaccurate is also presented."
Id. at 1003.
Id.
We rejected this rationale, and held that the case was controlled by the basic concept of relevance, and by Evidence Rule 402's preference for the admission of all relevant evidence "unless such evidence is otherwise specifically made inadmissible by constitution, statute or rule." Because the government had "failed to cite any constitutional provision, statute, or rule specifically rendering inadmissible the type of evidence offered by Denison in her own behalf," Denison was entitled to a new trial.
Id.
Id.
Here, Judge Froehlich did not exclude the audiotape because it was "non-technical evidence of actual sobriety"; rather, he excluded the audiotape because its potential for undue prejudice outweighed its probative value, and because Jensen's statements were hearsay. On appeal, Jensen does not acknowledge, let alone address, these rulings.
At trial, Jensen claimed that the tape would show that she did not sound intoxicated. Judge Froehlich agreed that for this purpose, the audiotape had some probative value. But he found that Jensen's self-serving statements about her good character were unduly prejudicial, and outweighed this probative value. He also pointed out that evidence relevant to how intoxicated Jensen sounded was contained in the police officer's field contact audiotape, which had already been admitted.
Jensen also claimed that the sounds of shuffling papers on the audiotape indicated that the officer administrating the breath test was not observing her during the fifteen-minute observation period. Judge Froehlich found that although Jensen had the right to attack the testing procedures, the sound of shuffling papers did not establish that the arresting officer was not watching her.
Judge Froehlich also excluded the evidence on hearsay grounds. He found that if Jensen was offering her out-of-court statements for their truth (that is, as proof of her good character to show that she would not drive drunk, or to show the trouble that would befall her if convicted of driving while intoxicated) then the statements were inadmissible hearsay.
See State v. Agoney, 608 P.2d 762, 764 (Alaska 1980) (explaining that defendant's out-of-court statement is hearsay if offered to prove the matter asserted, and is not admissible unless it falls within an exception to the hearsay rule or is offered for some non-hearsay purpose). See also Evidence Rule 802 (hearsay generally not admissible).
Other than to claim that excluding the audiotape was erroneous, Jensen does not address Judge Froehlich's actual rulings. Therefore, she has not shown that Judge Froehlich abused his discretion when he found that the probative value of the audiotape was outweighed by its potential for undue prejudice, and when he ruled that Jensen's out-of-court statements were inadmissible hearsay.
Was it error to exclude evidence of the Intoximeter's margin of error?
In Haynes v. State, Department of Public Safety, the Alaska Supreme Court acknowledged that the Intoximeter 3000 (the breath test machine used in Jensen's case) has a working tolerance, or inherent margin of error, of up to .01 percent. Thus, when the Intoximeter yields a reading of .10 percent blood alcohol (as it did in Jensen's case), the true blood alcohol level could be as high as .11 percent or as low as .09 percent. Jensen was convicted of having a blood alcohol content of .08 percent.
865 P.2d 753 (Alaska 1993).
Haynes, 865 P.2d at 754.
As we explained above, Judge Froehlich refused to let Jensen introduce evidence of the Intoximeter's inherent margin of error, concluding that this evidence was irrelevant. We agree that it was irrelevant or, at least, that whatever probative value it possessed was far outweighed by its potential for confusion of the issues.
In Haynes, the supreme court ruled that a defendant should receive the benefit of the Intoximeter's .01 percent margin of error because there was no indication that the legislature had considered this margin of error when it established the legal limit for driving in this state. But as we explained in Bushnell v. State, the legislature responded to the Haynes decision by enacting AS 28.40.060. This statute declares that "if an offense described under this title requires that a chemical test of a person's breath produce a particular result, and the chemical test is administered by a properly calibrated instrument approved by the Department of Public Safety, the result described by statute is not affected by the instrument's working tolerance."
Id. at 756; see also Barcott v. State, Dep't of Public Safety, 741 P.2d 226, 230 (Alaska 1987).
5 P.3d 889 (Alaska App. 2000).
In Bushnell, we held that AS 28.40.060 amounted to a legislative declaration that a properly calibrated Intoximeter 3000 was "tolerably inaccurate," and that the machine's inherent margin of error should be considered of no significance — that is, irrelevant. We further held that the legislature's action did not violate the defendant's constitutional right to due process.
Bushnell, 5 P.3d at 891-92.
Id. at 892.
Our decision in Bushnell fully supports Judge Froehlich's ruling. If, as we held in Bushnell, the working tolerance of the Intoximeter 3000 is irrelevant to the determination of a defendant's guilt, then Alaska Evidence Rule 402 forbids the introduction of this evidence.
Alaska Evidence Rule 402 states, in pertinent part: "Evidence which is not relevant is not admissible."
Jensen argues that the Intoximeter's margin of error is relevant. However, Jensen does not discuss (indeed, she does not even mention) our decision in Bushnell — not even in her reply brief, after the City and Borough of Juneau expressly relied on Bushnell. This type of briefing is inadequate to preserve Jensen's claim of error. Jensen's point is therefore waived.
See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of N.Y., 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978); Kristich v. State, 550 P.2d 796, 804 (Alaska 1976); Lewis v. State, 469 P.2d 689, 691 692 n. 2 (Alaska 1970).
In a related argument, Jensen contends that this error was "compounded" by an instruction directing the jury to disregard the Intoximeter's margin of error if it found that the breath test was administered by a properly calibrated instrument. But Judge Froehlich withdrew this instruction before the jury deliberated. Because Jensen has not argued that this remedy was inadequate, we need not address this claim of error. Conclusion
See Knix v. State, 922 P.2d 913, 923 (Alaska App. 1996) (noting that courts ordinarily presume that a jury follows the trial court's instructions).
Jensen's conviction is AFFIRMED.