Opinion
Court of Appeals No. A-9250.
September 20, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Raymond M. Funk, Judge. Trial Court No. 4FA-03-4221 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Raymond C. Spencer challenges his conviction for felony driving while under the influence. He argues that the superior court erred by refusing to instruct the jury that the machine used to test the alcohol level in his breath had an inherent margin of error. He also argues that the court abused its discretion by admitting evidence that he had refused to submit to field sobriety tests. Having reviewed the record, we conclude that these claims have no merit. We therefore affirm Spencer's conviction.
Facts and proceedings
On November 15, 2003, at about 3:15 a.m., Alaska State Troopers Garrett Willis and Jason Pugh were on patrol in Fairbanks when they saw an older-model pickup abruptly change lanes without signaling. The troopers saw that the truck's rear license plate was not illuminated as required, so they activated their emergency lights to signal the truck to pull over. Trooper Willis saw Spencer look in his rearview mirror at the patrol car, but Spencer did not pull over. Because Spencer had a load of logs in his truck that might have obscured his line of sight, Trooper Willis pulled the patrol car into the left lane. Spencer again looked in his rearview mirror but still did not pull over. Trooper Willis then activated the patrol car's siren.
Spencer continued driving, passing by a number of safe places to pull over. Eventually Spencer pulled his truck over and stopped. He immediately jumped out of the truck and began yelling at the troopers. He then tried to get back into his truck, but the troopers ordered him to step outside and shut the door. Spencer refused to give the troopers his name and ignored repeated requests that he take his hands out of his pockets.
Trooper Pugh handcuffed Spencer and placed him in the back of the patrol car. (While in pursuit of Spencer's vehicle, the troopers had established through dispatch that Spencer's driver's license was revoked and that he had an outstanding warrant for his arrest.) The troopers at that point smelled a "slight" odor of alcohol on his breath. After Spencer refused to perform field sobriety tests, he was transported to the trooper post, where he submitted to a breath test that showed a breath alcohol level of .08 percent.
Spencer's criminal record included qualifying prior convictions that enabled the State to charge Spencer with felony driving while under the influence. The State also charged Spencer with driving while license revoked or suspended, failing to stop at the direction of a peace officer, making an improper lane change, and failing to properly illuminate his rear license plate.
AS 28.35.030(a), (n).
AS 28.15.291(a)(1).
AS 28.35.182.
Before trial, Spencer filed a motion asking the court to instruct the jury on the inherent margin of error of the Datamaster CDM, the breath test instrument used in his case. Superior Court Judge Raymond M. Funk denied the motion. Spencer then asked the court to bar the State from introducing evidence that he had refused to perform field sobriety tests. Judge Funk also denied that request.
The jury convicted Spencer of felony driving while under the influence and failure to stop at the direction of a peace officer. (Spencer had pleaded no contest to driving with a suspended license before trial.) Judge Funk then found Spencer guilty of the two charged traffic violations.
Spencer appeals.
Discussion
Should the court have instructed the jury on an inherent margin of error for the Datamaster?
Under AS 28.35.030(a)(2), a motorist is guilty of driving while under the influence if a breath test taken within four hours of driving shows a blood alcohol level of at least .08 percent. As noted earlier, Spencer's breath test showed a breath alcohol level right at that legal limit. At trial, Spencer asked the court to instruct the jury on the Datamaster's inherent margin of error, or "working tolerance." Relying on AS 28.40.060, Judge Funk denied that request.
Alaska Statute 28.40.060 provides in relevant part that:
[I]f 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.
When this statute was enacted, the State was using the Intoximeter 3000 breath test machine, which had a generally recognized margin of error of plus or minus.01 grams per 210 liters. In Bushnell v. State, we ruled that the legislature, by enacting AS 28.40.060, had implicitly declared that this margin of error was "tolerably inaccurate" and irrelevant to a driver's guilt under AS 28.35.030(a)(2). We then rejected the defendant's claim that the statute violated due process by allowing the State to select a breath test machine without regard to the accuracy of the machine. We noted that a due process problem might arise if the State switched to a machine that was less accurate than the Intoximeter 3000, but we found that scenario "unlikely."
Bushnell v. State, 5 P.3d 889, 891-92 (Alaska App. 2000).
Id. at 891-92.
Id.
Id. at 892.
By the time of Spencer's breath test, the State was no longer using the Intoximeter 3000 and had switched to the Datamaster CDM. Spencer argues that he was entitled to a jury instruction on the Datamaster's margin of error because the State failed to show that the Datamaster is as accurate as the Intoximeter.
At an evidentiary hearing in superior court, the State presented the testimony of two experts on the Datamaster. Judge Funk made several findings based on that testimony. He found that the expert from the company that manufactures the Datamaster testified that the machine had two inherent margins of error that, if added together, could result in a total margin of error of plus or minus .0045 grams per 210 liters at the .08 percent alcohol level. Judge Funk found that this margin of error decreased at breath alcohol readings of .10 percent and above. Judge Funk also found that the Datamaster was federally approved for breath testing, which meant that it had a margin of error of.005 grams per 210 liters or less at a .10 percent alcohol level. Judge Funk found that the state crime lab considered three different breath testing machines and chose the Datamaster based on a number of criteria, including accuracy. Based on this evidence, Judge Funk found that Spencer had failed to establish that the Datamaster had a margin of error that was greater than the Intoximeter.
Judge Funk expressed his findings in terms of percentages; we have used grams per 210 liters.
Spencer has not challenged Judge Funk's findings. Instead, he attacks the process by which the State selected the Datamaster. He complains that the state used a single-source bid to purchase the Datamaster and considered "accuracy" as only one of forty factors. He also complains that the state destroyed the data it generated in selecting the machine. But Spencer has not articulated how he was prejudiced by these alleged deficiencies in the state's selection process — given that he does not challenge Judge Funk's findings regarding the accuracy of the machine.
Spencer also points to testimony by one of the State's experts, a criminalist with the state crime lab, suggesting that the generally accepted .01 margin of error for the Intoximeter 3000 encompasses potential errors in the whole Intoximeter system — that is, errors in both the machine and external components. But even assuming for the sake of argument that the legislature in enacting AS 28.40.060 implicitly disapproved a margin of error greater than plus or minus .01 for the whole breath test system, the undisputed testimony in Spencer's case was that the margin of error for the Datamaster system was no greater than this.
It was Spencer's burden to show that his due process rights were violated. At trial, Judge Funk invited Spencer to produce a study or to submit additional briefing to show that the Datamaster was less accurate than the Intoximeter, but Spencer declined that invitation. Given this record, we find no merit to Spencer's claim that the court erred by not instructing the jury on the Datamaster's margin of error.
Did the court abuse its discretion by allowing the State to introduce evidence that Spencer had refused to submit to field sobriety tests?
Spencer next argues that Judge Funk abused his discretion by allowing the State to introduce evidence that he had refused to perform field sobriety tests. He argues that the troopers had no right to ask him to take sobriety tests because they did not have probable cause to believe he was intoxicated. Therefore, he argues the evidence of his refusal should not have been admitted at trial.
In Galimba v. Anchorage, we held that the "police do not need probable cause sufficient for an arrest before requesting typical field sobriety tests." Spencer has not persuaded us to overrule Galimba. We therefore reject his claim. Conclusion
19 P.3d 609 (Alaska App. 2001).
Id. at 612.
See David v. State, 123 P.3d 1099, 1105 (Alaska App. 2005).
Spencer's conviction is AFFIRMED.