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Bertilson v. State (2/14/2003) ap-1851
Bertilson v. State (2/14/2003) ap-1851
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN L. BERTILSON, )
) Court of Appeals No. A-
8032
Appellant, ) Trial Court
No. 3AN-99-10004 CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
) [No. 1851 - February
14, 2003]
Appellee. )
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Stephanie E.
Joannides and Larry D. Card, Judges.
Appearances: Dan Allan, Law Offices of Dan
Allan, Anchorage, for Appellant. Kenneth M.
Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Following a jury trial, John L. Bertilson was convicted
of felony driving while intoxicated.1 In this appeal, he raises
approximately eighteen claims of error. Among them, he claims
that evidence should have been suppressed because the police made
an illegal stop and arrest, that the indictment should have been
dismissed because improper evidence was presented to the grand
jury, and that he was prevented from presenting evidence and from
arguing that his blood alcohol content was less than .10 percent
at the time he was driving. He also claims that the superior
court erred when it refused to exclude police testimony
concerning the horizontal gaze nystagmus field sobriety test, and
when it refused to exclude the breath test results because police
did not strictly comply with testing procedures. Additionally,
he claims that the superior court erred when it ruled that
reckless driving was not a lesser-included offense of felony
driving while intoxicated, and that he was entitled to a new
trial because the trial judge did not disclose that one of the
prosecutors was the trial judges former law clerk.
Based on our recent decision in Conrad v. State,2 we
conclude that Bertilson is entitled to a new trial because he was
prevented from presenting evidence and from arguing that his
blood alcohol content was less than .10 percent at the time he
was driving. Accordingly, we reverse Bertilsons conviction. We
also conclude that the superior court erred when it ruled that
reckless driving was not a lesser-included offense of felony
driving while intoxicated.
We conclude, however, that the superior court did not
err when it found that Bertilsons stop and arrest were lawful,
when it refused to exclude police testimony about the horizontal
gaze nystagmus test, and when it refused to exclude his breath
test results. We do not address Bertilsons claim that the trial
judge had a duty to disclose that one of the prosecutors had
recently worked for the trial judge as a law clerk because that
claim is moot. Because we have concluded that Bertilson is
entitled to a new trial, we do not address his other claims of
error.3
Facts and proceedings
On November 15, 1999, at about 12:30 a.m., Bertilson
was stopped by police because his vehicle matched the description
given by a citizen who had called on her cell phone to report a
possible drunk driver. Based on their observations and being
aware of the reported erratic driving, police administered field
sobriety tests. Bertilson passed one test, but did poorly on
four others. Bertilson was then arrested for driving while
intoxicated and taken to a police substation for a breath test.
The breath test results from the Intoximeter showed that at 2:09
a.m. Bertilsons blood alcohol content was .123 percent. He then
had an independent blood test, which showed that at 2:44 a.m. his
blood alcohol content was .13 percent.
Because Bertilson had two prior qualifying convictions,
he was charged with felony driving while intoxicated under AS
28.35.030(a) and (n). The State alleged that he had committed
the offense under either subsection (a)(1) (that the defendant
was impaired by the consumption of alcohol), subsection (a)(2)
(that the defendants blood alcohol level was .10 percent or
higher), or both. Ultimately, a jury convicted Bertilson.
However, the jury returned a general verdict that did not specify
whether it had found him guilty under subsection (a)(1),
subsection (a)(2), or both.
Prior to trial, the State moved to limit evidence;
among other things, the State, based on our decision in
Mangiapane v. Anchorage,4 sought to preclude Bertilson from
presenting any evidence of how alcohol is absorbed and eliminated
from the blood stream to show that his blood alcohol content may
have been less than .10 percent when he was driving. This motion
was granted in part.
Bertilson also made a number of pre-trial motions.
Among other things, he moved to suppress the evidence that he had
been driving while intoxicated, to dismiss the indictment, to
preclude the police from expressing their opinions about his
performance on the field sobriety tests, and to preclude the
State from offering the Intoximeter test results. These motions
were all denied.
Additionally, near the end of trial, Bertilson asked
that the jury be instructed that it could consider reckless
driving as a lesser-included offense. After trial, Bertilson
sought a new trial asserting, among other things, that the judge
who presided over the trial should have disclosed that one of the
prosecutors had recently worked for the judge as a law clerk.
These requests also were denied.
Discussion
The elements of the blood alcohol level
theory of driving while intoxicated
Bertilson argued below that the State was required to
prove that his blood alcohol content was .10 percent or higher at
the time he was driving. He contends that Superior Court Judge
Larry D. Card erred when he ruled, based on Mangiapane, that the
target of the States prosecution is no longer [the blood alcohol
content] at the time of driving [.] . . . The target is
[whether] within four hours of driving there is an alcohol test
which renders a result of [.10 percent] or greater.
In Conrad, we were called upon to construe the elements
of AS 28.35.030(a)(2), the blood alcohol level theory of driving
while intoxicated.5 We concluded that, despite our discussion in
Mangiapane, a defendants guilt under AS 28.35.030(a)(2) hinges on
the defendants blood alcohol content at the time the defendant
operated or controlled a motor vehicle.6
Our decision in Conrad resolves this issue in
Bertilsons favor. Bertilson was charged under both theories of
driving while intoxicated. Like Conrad, Bertilson wanted to
defend against the .10 charge by presenting expert testimony that
his blood alcohol content, while exceeding the permissible level
when tested, was lower than .10 percent at the time he was
driving. But, while Bertilson was able to present this
evidence,7 the jury was ultimately instructed that under the
blood alcohol level theory, Bertilsons guilt hinged on the test
result and not on his actual blood alcohol level at the time he
was driving. Accordingly, Bertilson is entitled to a new trial.
Although we have concluded that Bertilson is entitled
to a new trial, we now resolve some of his remaining claims.
The lesser-included offense of reckless
driving
Bertilson contends that Judge Card should have
instructed the jury on reckless driving as a lesser-included
offense of driving while intoxicated. Bertilson requested this
instruction below, but Judge Card ruled that reckless driving was
not a lesser-included offense of felony driving while
intoxicated. We conclude that this was error. If, under the
cognate approach,8 Bertilson was otherwise entitled to have the
jury instructed on reckless driving as a lesser-included offense,
then it does not matter whether he was charged with felony or
misdemeanor driving while intoxicated.
The State concedes that under Comeau v. State9 and
under the facts of this case, Bertilson was entitled to a
reckless driving instruction. We conclude that the States
concession has merit.10 Comeau does not stand for the
proposition that reckless driving is a lesser-included offense in
every driving while intoxicated case, but Bertilsons case falls
squarely within the circumstances defined in Comeau. In Comeau,
a majority of this court held that reckless driving is a lesser-
included offense of driving while intoxicated when a defendant is
charged under the impairment theory of AS 28.35.030(a)(1), the
element of intoxication [is] disputed[,] and . . . the
prosecution support[s] its [impairment] case by proof that the
defendant actually drove in an erratic or dangerous manner.11
Here, Bertilson disputed whether he was intoxicated, and the
State supported its impairment case with evidence that Bertilson
drove in an erratic and dangerous manner before he was stopped.
Under these circumstances, Bertilson was entitled to have the
jury instructed on reckless driving.
Although we conclude that Bertilson was entitled to
have the jury instructed on reckless driving as a lesser-included
offense, we note that on appeal Bertilson makes an argument that
is not supported by Comeau. Bertilson in essence argues that he
was entitled to the reckless driving jury instruction because any
person who drinks any amount of alcohol and drives is per se
driving recklessly. We reject this argument. Under AS
28.35.040, to prove reckless driving, the State has to show that
a person drove in a manner that creates a substantial and
unjustifiable risk of harm to a person or to property. A person
who drinks alcoholic beverages and then drives, but who is not
impaired, is not necessarily driving recklessly.
The State invites us to overrule the majority decision
in Comeau and to adopt the rationale of Judge Singletons
concurrence in that case. We decline to do so. In Erickson v.
State,12 we said:
Under the doctrine of stare decisis, a
litigant who asks an appellate court to
overrule a prior decision must demonstrate
convincing reasons why the existing rule was
originally erroneous or is no longer sound
because of changed conditions. The litigant
must also demonstrate that more good than
harm would result from a departure from
precedent.[13]
Here, the State has not met these burdens.
Bertilsons motion to suppress evidence
Bertilson contends that Superior Court Judge Stephanie
E. Joannides erred when she denied his motion to suppress
evidence. Bertilson asserts that the superior court should have
suppressed evidence because the police made an illegal stop and
arrest. He claims that the police had no reasonable suspicion to
justify the traffic stop and no probable cause to arrest him
later.
In Bertilsons case, the police dispatcher had a call
from a citizen who identified herself and described Bertilsons
erratic driving. The caller told the dispatcher that she had
been following a possible drunk driver for quite some ways down
the Seward Highway and then eastbound on Northern Lights and that
the vehicle was doing quite a bit of swerving and . . . was
speeding at one point. Additionally, the vehicle kept swerving
over the lanes, crossing the line. The caller also gave the
dispatcher a description of the vehicle and its license plate
number. The caller had followed the vehicle for some time before
contacting the police and was then on the telephone with the
dispatcher for about four minutes. The dispatch center relayed
this information to patrol units.
Three patrol units quickly found the vehicle in the
vicinity; they saw it traveling northbound on Muldoon near
DeBarr, and then watched the vehicle make a U-turn. This U-turn
was legal, but noticeably wider than normal, and was made
approximately three-quarters of the way across the intersection.
Police testified that this type of turn is at the top of
indicators that the driver may be intoxicated.
Judge Joannides found that this U-turn served to
corroborate the officers belief that the defendants car was the
vehicle described by [the police] dispatch. She found, based on
the description the caller provided of Bertilsons vehicle and
driving, the fact that Bertilson was found in the same area
within minutes of the dispatch, and the wide U-turn the police
witnessed, that the police were justified in making an
investigatory stop.
After stopping the vehicle, the police contacted
Bertilson. During this contact, the police found that his eyes
were watery and bloodshot and that he had an odor of alcohol.
Based on this information, and aware of the earlier report of
erratic driving, the police conducted typical field sobriety
tests. Bertilson failed the heel-to-toe test and twice failed
the horizontal gaze nystagmus test. He also twice asked for
additional directions on the counting test. Judge Joannides
found that this information, added to what the police already
knew, provided probable cause to arrest Bertilson for driving
while intoxicated. The record supports Judge Joannidess
findings.
Based on our review of the information that the police
had from the dispatcher, and the police officers own
observations, we conclude that Judge Joannides could properly
find that the stop was based on the reasonable suspicion that
Bertilson was driving while intoxicated. We also conclude that
based on the evidence developed during the contact with
Bertilson, the police had probable cause to arrest him for
driving while intoxicated.
In his suppression motion, Bertilson also claimed that
suppression was warranted under Ballard v. State14 because the
police had placed too much emphasis on his performance on the
second horizontal gaze nystagmus test in finding probable cause
to arrest him. In Ballard we held that evidence of horizontal
gaze nystagmus testing may not, of itself, be sufficient to
establish intoxication, and that a persons performance on the
test can not necessarily be tied to a particular blood-alcohol
level.15 Bertilson asserted below that because his performance
on the other field sobriety tests was borderline, the police must
have improperly relied on the results of the horizontal gaze
nystagmus test to decide that he was intoxicated or that he had a
particular blood-alcohol level. Judge Joannides rejected this
claim, finding that there was no evidence showing that the
horizontal gaze nystagmus tests had been the dispositive factor
in the decision to arrest Bertilson.
On appeal, Bertilson renews his claim that suppression
was warranted under Ballard. Again claiming that his other field
sobriety test results were borderline, Bertilson argues that the
police must have improperly placed too much weight on the fact
that he failed the second horizontal gaze nystagmus test to
conclude that he might be intoxicated. Bertilsons argument,
however, wrongly focuses on the officers subjective reasons for
making the arrest. The officers subjective reasons for making
the arrest are irrelevant.16 Rather, Judge Joannides was
required to analyze the objective information which the police
had at the time when they made an arrest in determining whether
there was probable cause to make that arrest.17 Viewed
objectively, the record supports Judge Joannidess decision. The
evidence presented to Judge Joannides showed that the police, in
addition to the horizontal gaze nystagmus results, had plenty of
information upon which to base their conclusion that Bertilson
probably was intoxicated.
Based on our review of the record, we conclude that
Judge Joannides did not err when she denied Bertilsons motion to
suppress. Both the investigatory stop and the arrest were
lawful.
The motion to dismiss the indictment
Bertilson also contends that the indictment should have
been dismissed. He argues that improper evidence was presented
to the grand jury and that if this evidence were excised, there
would be insufficient admissible evidence to support the
indictment. Although Bertilson supports this argument with
citations to a grand jury transcript, this transcript is not part
of the appellate record. Based on the record before us, we are
unable to resolve Bertilsons challenges to the indictment.18
Bertilson has therefore waived these challenges.
The motion to exclude testimony about the
horizontal gaze nystagmus test
Bertilson contends that Judge Card should have granted
his pre-trial motion to prevent the police from testifying that
his failure on the horizontal gaze nystagmus test was enough to
establish that he was intoxicated. Bertilson argued below that
under Ballard, the police officers should not be allowed to give
their opinions that he was intoxicated because those opinions
were improperly based on his performance on the horizontal gaze
nystagmus test.
Judge Card concluded that the officers testimony on
Bertilsons performance on the horizontal gaze nystagmus test was
admissible for the purpose it was offered: as one factor for the
jury to consider in determining if Bertilson was intoxicated. He
acknowledged that the State could not present or use the evidence
in a manner that violated Ballard by correlating the test with a
particular blood alcohol level or placing too much emphasis on
its reliability. But Judge Card refused to enter a pre-trial
order preventing the officers from expressing any opinion about
Bertilsons performance on the test. We conclude that Judge Card
did not abuse his discretion. Bertilson provided Judge Card no
cogent reason for excluding evidence that is generally admissible
in driving while intoxicated cases.
On appeal, Bertilson complains that one of the officers
testified in a manner that violated Ballard. However, he did not
object to this testimony below. Nor can he rely on an event that
occurred during the trial to support his claim that the superior
court should have granted Bertilsons pre-trial motion to exclude
certain evidence.
The motion to exclude the Intoximeter results
Bertilson also contends that Judge Card should have
entered an order precluding the State from introducing the
Intoximeter test results. Below, he argued that this evidence
should be excluded because the police had failed to comply with
several Intoximeter processing procedures. Specifically, he
asserted below, and repeats on appeal, that the police failed to
check Bertilsons mouth for foreign substances, failed to ensure
that no two-way radios were operating near the Intoximeter, and
failed to restart the testing procedures when Bertilson had a
violent coughing fit. Judge Card refused to exclude the
Intoximeter evidence based on these arguments; he ruled, however,
that Bertilson could raise these issues in cross-examination.
In Oveson v. Anchorage,19 the Alaska Supreme Court held
that the results of a breath test were admissible even though the
test was not done in strict compliance with regulatory
procedures.20 In light of Oveson, we conclude that Judge Card
did not abuse his discretion when he refused to exclude the
Intoximeter test results.
Whether Bertilson was entitled to a new trial
because Judge Card did not disclose that one
of the prosecutors had been his law clerk
Bertilson contends that Judge Card should have
disqualified himself because the prosecutor was his former law
clerk. In the alternative, Bertilson argues that Judge Card was
at least obliged to disclose this relationship so that Bertilson
could challenge the judge. Because we are reversing Bertilsons
conviction and because Bertilson is now aware of the judges
former professional relationship with the prosecutor, Bertilsons
claim is moot. If he is retried, the same prosecutor represents
the State, and Judge Card is reassigned the case, Bertilson can
raise these issues at that time.
Conclusion
Bertilsons conviction is REVERSED. When prosecuting a
defendant for driving while intoxicated, the State has to prove
that a defendant is either impaired or has the prohibited blood
alcohol level at the time of operating or controlling a motor
vehicle.
Additionally, reckless driving is a lesser-included
offense of felony driving while intoxicated under the facts of
Bertilsons case.
The decisions of the superior court denying Bertilsons
motion to suppress evidence based on his stop and arrest, his
motion to exclude police testimony about the horizontal gaze
nystagmus test, and his motion to exclude the breath test results
are AFFIRMED.
MANNHEIMER, Judge, concurring.
I am writing separately to address the States
contention that we should revisit and overrule Comeau v. State,
758 P.2d 108 (Alaska App. 1988).
In Comeau, a majority of this Court held that reckless
driving is a lesser included offense of driving while intoxicated
if (1) the defendant is charged under the under the influence
theory codified in AS 28.35.030(a)(1), and (2) the defendant
disputes being under the influence, and (3), to prove the
defendants impairment, the State relies on evidence that the
defendant drove erratically or dangerously.1 Judge Singleton
dissented from this decision, arguing that the majority had
misapplied Alaskas cognate approach to lesser included offenses.
Judge Singleton pointed out that, even though the same
evidence may often be sufficient to prove both driving while
intoxicated and reckless driving, a person may be found guilty of
driving under the influence of intoxicants even though the person
did not drive in a manner which create[d] substantial and
unjustifiable risk of harm to a person or to property a
necessary element of reckless driving as defined in AS 28.35.
040(a). Thus, reckless driving is not necessarily included
within the act of driving while intoxicated.2
I believe that Judge Singletons dissent is correct:
this Court misapplied the cognate approach in Comeau. However,
this by itself is not a sufficient reason to overrule Comeau. As
this Court explained in Erickson v. State, when a litigant
attacks a rule of law established in one of our prior decisions,
the doctrine of stare decisis requires the litigant to
convincingly demonstrate not only [that] the existing rule was
originally erroneous but also that more good than harm would
result from a departure from precedent.3
The State does not assert that the Comeau decision has
led to injustice or that it otherwise frustrates the proper
working of the criminal justice system. As Judge Singleton
pointed out in his dissent, the Comeau rule affects only a small
proportion of DWI cases cases in which the defendant is
prosecuted solely under the under the influence theory (and not
the blood-alcohol theory codified in AS 28.35.030(a)(2)), and in
which the defendant disputes being under the influence and the
State relies on evidence that the defendant drove erratically or
dangerously as circumstantial evidence of the defendants
impairment.4 Because the State has not shown (or even argued)
that the Comeau rule has led to harmful results, I join my
colleagues in rejecting the States request to revisit and
overrule Comeau.
_______________________________
1 AS 28.35.030(a) & (n).
2 54 P.3d 313 (Alaska App. 2002).
3 These generally addressed jury selection proceedings,
trial-related evidentiary rulings, and jury instructions.
4 974 P.2d 427 (Alaska App. 1999).
5 Bertilson, like Conrad, was prosecuted under the former
version of AS 28.35.030(a)(2). Since then, the legislature has
lowered the allowable level of alcohol to .08 percent. See ch.
63, 9, SLA 2001.
6 Conrad, 54 P.3d at 315.
7 This evidence was admitted at trial for the limited
purpose of contesting the States impairment theory.
8 See Hansen v. State, 845 P.2d 449, 453 n.1 (Alaska App.
1993) (under the cognate approach, a lesser offense will qualify
as included if under the factual allegations against the
defendant, it would be impossible for the defendant to have
committed the charged crime without also having committed the
lesser offense.).
9 758 P.2d 108 (Alaska App. 1988).
10 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)
(holding that a reviewing court must independently review a
partys concession).
11 758 P.2d at 114.
12 950 P.2d 580 (Alaska App. 1997).
13 Id. at 587 (internal quotation marks and citations
omitted).
14 955 P.2d 931 (Alaska App. 1998), overruled on other
grounds by State v. Coon, 974 P.2d 386 (Alaska 1999).
15 Id. at 940.
16 See Beauvois v. State, 837 P.2d 1118, 1121-22 n.1
(Alaska App. 1992) (The test is whether, under the facts known to
the police officer, the stop of the car was objectively
justified.).
17 State v. Kendall, 794 P.2d 114, 117 (Alaska App. 1990).
18 See Jackson v. State, 31 P.3d 105, 110 (Alaska App.
2001) (citing Ketchikan Retail Liquor Dealers Assn v. State,
Alcoholic Beverage Control Bd., 602 P.2d 434, 438-39 (Alaska
1979), modified at 615 P.2d 1391 (Alaska 1980)) (holding that a
partys failure to designate a record to support the partys claims
justifies a reviewing court in deciding those claims against the
party); see also Miscovich v. Tryck, 875 P.2d 1293, 1304 (Alaska
1994) (It is well established that a partys failure to designate
portions of the record that are necessary to allow the
determination of a point on appeal will amount to a waiver or
abandonment of that point.).
19 574 P.2d 801 (Alaska 1978).
20 See id. at 804-05.
1 Comeau, 758 P.2d at 114.
2 Id. at 121-23 (Singleton, J., dissenting).
3 Erickson, 950 P.2d 580, 587 (Alaska App. 1997).
4 Comeau, 758 P.2d at 118 & n.1 (Singleton, J.,
dissenting).
