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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Olson v. State (9/23/2011) sp-6602
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
FRANK J. OLSON, )
) Supreme Court No. S-13595
Petitioner, ) Court of Appeals No. A-08776
)
v. ) Superior Court No. 3AN-02-04962 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6602 - September 23, 2011
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Julia D. Moudy, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for
Petitioner. K enneth M. Rosenstein, Assistant Attorney
General, Anchorage, and D aniel S. Sullivan, Attorney
General, Juneau, for Respondent.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Frank Olson was arrested in Anchorage for driving while intoxicated. At
the police station he refused to submit to a breath test. An officer advised him of the
consequences for refusing to take the test using an implied consent form, but the form
contained information that was out of date; it stated that refusal was a felony if the
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arrestee had been convicted of DWI or refusal twice within the previous five years. In
fact, refusal was a felony if the arrestee had been twice convicted within the previous ten
years. Olson had several prior DWI convictions, one of which was approximately three
weeks outside the five-year window, but well within the ten-year window. O lson
persisted in his refusal and was convicted of the class C felony, refusal to submit to
chemical test. He appealed, claiming the erroneous warning violated his due process
rights. O lson's conviction was affirmed, but we granted his petition for hearing.
Because we now hold that Olson bears the burden of proving prejudice from the
erroneous information, we remand to give him an opportunity to make this showing.
II. FACTS AND PROCEEDINGS
The facts of this case are undisputed. O n June 12, 2002, the police
responded to a report of a car stopped in the roadway with a person slumped over the
steering wheel. They found Frank Olson in the driver's seat with the engine running and
the transmission in "drive." After waking Olson, the officers observed that he would not
make eye contact, would not answer any questions, was unsteady on his feet, and smelled
of alcohol. Th ey tried to administer the standardized field sobriety horizontal gaze
nystagmus test (following the officer's finger from right to left), but Olson either would
not or could not follow the instructions. The officers arrested Olson for driving while
intoxicated.
There is no dispute that Olson refused to provide a breath sample at the
police station and that our case law required the police to inform him of the
1 The arresting officer attempted to do so by reading Olson
consequences of his refusal.
the implied consent form the station was using at that time. A lthough there is no
1 See, e.g., Copelin v. State, 659 P.2d 1206, 1212 n.15 (Alaska 1983) (citing
Wirz v. State, 577 P.2d 227, 230 (Alaska 1978)).
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allegation that the police officer in this case had any improper motive, it is uncontested
that he gave an incorrect warning. Using an out-of-date, pre-printed form, the officer
advised Olson that: "R efusal to submit to a ch emical test can be either a cl ass A
misdemeanor or a class C felony. If you have been twice convicted of either driving
while intoxicated or refusal to take a chemical test in the last five years, the penalty for
refusing to take the test is a class C felony." (Emphasis added).
Olson had several prior convictions for DWI, including four convictions
for DWI in Alaska since 1992. The two most recent of these convictions occurred after
the effective date for the statutory amendment that created the ten-year look back period.
One of the prior convictions - from May 19, 1997 - was three weeks too old to be
considered in a five-year look back period but fit easily inside a ten-year look back
period.
Olson was indicted for the class C felony refusal to submit to chemical test,
he was convicted, and the court of appeals affirmed his conviction.
III. STANDARD OF REVIEW
Whether a due process violation occurred is a question of law, which we
2
review de novo. We will adopt the rule of law that is "most persuasive in light of
precedent, reason, and policy."3
IV. DISCUSSION
The issue we must decide is whether Olson's due process rights were
violated by the improper warning regarding the consequences of refusal. This requires
that we consider whether a reasonable person would regard it as a "fundamentally unfair
2 See S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 61 P.3d 6, 10 (Alaska 2002); Whiteside v. State, Dep't of Pub. Safety, Div. of
Motor Vehicles, 20 P.3d 1130, 1134 (Alaska 2001).
3 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
-3- 6602
----------------------- Page 4-----------------------
use of government power" for the police to give a warning that understates the
consequences of refusal, and then, after an arrestee refuses to submit to chemical testing,
indict the arrestee for the greater penalty.4
Under Alaska's implied consent law, AS 28.35.031, a person who drives
or operates a motor vehicle in Alaska is considered to have given implied consent to a
5
breath test. If the motorist refuses the breath test, AS 28.35.032 provides that the officer
must warn the person: (1) that refusal will result in the denial or revocation of the
person's driver's license; (2) that refusal may be used against the person in a civil or
criminal action or proceeding arising out of the incident; and (3) that refusal is a "crime."
If the person still refuses, no chemical test may be given.6
Alaska Statute 28.35.032 also outlines the penalties for refusal. Section (f)
states that refusal is ordinarily a misdemeanor. But section (p) adds that:
A person is guilty of a class C felony if th e person is
convicted under this section and . . . h as been previously
convicted two or more times since January 1, 1996, and
within the 10 years preceding the date of the present offense.
4 Municipality of Anchorage v. Ray, 854 P.2d 740, 748 (Alaska App. 1993)
("The due process guarantee protects citizens from the arbitrary or fundamentally unfair
use of government power . . . ."); cf. Nichols v. State, 425 P.2d 247, 256 (Alaska 1967)
(Rabinowitz, J., concurring) (describing the failure to appoint counsel once a sentencing
court has det ermined that a hea ring is required to resolve factual issues as
"fundamentally unfair").
5 AS 28.35.031(a). T his statute applies if th e person has been "lawfully
arrested for an offense arising out of acts alleged to have been committed while the
person was operating or driving a motor vehicle." Id. There is no dispute the police had
probable cause to arrest Olson.
6
AS 28.35.032(a). There are some exceptions, but none of them are relevant
here.
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The statute's ten-year look back period was the result of a J uly 2001 statutory
7
amendment. Before the amendment, the statute provided for a five-year look back
window.8
Olson argues that the police violated his due process rights by giving him
inaccurate information about the look back period. Olson does not allege bad faith by
9
the officer, but he contends the erroneous information hindered his ability to make a
"knowing and intelligent decision to refuse to submit to a chemical test."10 The State
argues that the warning is not an element it must prove in order to establish unlawful
refusal, that it was only obligated to inform Olson that refusal is a "crime," and that it
met this duty. The State also responds that Olson's "knowing and intelligent" argument
is misplaced because this standard traditionally applies where a right exists, and Alaska
courts have repeatedly stated that there is no constitutional, statutory, or implied right to
7 Ch. 63, § 13, SLA 2001.
8 See former AS 28.35.032(p) (2000).
9 See Hernandez v. State, 28 P.3d 315, 318 ( Alaska App. 2001) ("[An]
officer's good faith is not determinative of whether the officer's conduct violated [the
defendant's] right to due process.").
10 The court of appeals characterized Olson's argument as: "[T]he police must
inform the arrestee whether refusal will be a misdemeanor or a felony." But Olson's
brief on appeal argued that "the warnings were inadequate to ensure that [he] understood
the consequences of his refusal" because "there is a substantial difference between
informing a person that the crime is a misdemeanor as opposed to a felony." We
interpret Olson's argument in the court of appeals to be the same argument he makes to
our court: he does not argue that the police have a duty to inform an arrestee of the class
of penalty for refusing; he argues that if they choose to do so, the information they
provide must be accurate.
-5- 6602
----------------------- Page 6-----------------------
11
refuse to take a breath test. In Alaska, arrestees have the power to refuse, meaning the
police may not administer the test if a person continues to refuse after being informed
that refusal is a crime.12
We find the State's first argument unpersuasive because the incorrect
information given to Olson raises due process concerns even if the State met its burden
of informing Olson that refusal is a crime, and even if the State can prove the elements
of refusal. We find the State's second argument unpersuasive for two reasons: (1) we
define "power to refuse" in the same way other jurisdictions loosely use the term "right
to refuse"; and (2) the validity of the decision to refuse is called into question when the
decision is premised upon misinformation.
A. The Incorrect Information Given To Olson Raises A Due Process Issue.
The State and the court of appeals rely heavily on earlier holdings that "the
13
warnings required by [the implied consent statute] . . . are not elements of the offense."
As the State phrases it, "[t]he police satisfied the foundation requirement of [the implied
consent statute] by informing Olson that his refusal would constitute a misdemeanor.
Even though this was inaccurate as to the class of offense, it still unmistakably conveyed
11 See, e.g., Copelin v. State, 659 P.2d 1206, 1212 (Alaska 1983) (holding that
arrestees may have no right to refuse, but do have a power to refuse); Graham v. State,
633 P.2d 211, 214 (Alaska 1981) ("Under Alaska law . . . one arrested for operating a
motor vehicle while under the influence of intoxicating liquor has no constitutional or
statutory right to refuse to submit to a breathalyzer test.") (internal citations omitted);
Wirz v. State, 577 P.2d 227, 230 (Alaska 1978) (refusing to recognize a statutory or
implied right to refuse).
12
Copelin, 659 P.2d at 1212 (citing Anchorage v. Geber, 592 P.2d 1187
(Alaska 1979)). See also AS 28.35.032(a).
13 Brown v. State, 739 P.2d 182, 185 (Alaska App. 1987) (citing Svedlund v.
Anchorage, 671 P.2d 378, 385 (Alaska App. 1983)).
-6- 6602
----------------------- Page 7-----------------------
to Olson[] that refusal would be a crime. And that is all [the statute] requires." We agree
the police satisfied the statutory duty to inform Olson that refusal is a crime, and we
agree the State proved the elements of refusal, but this is insufficient to answer the
question whether Olson's due process rights were violated when he was given an
incorrect warning.14
B. The Distinction Between A "Right" And A "Power" Is Not Relevant
To This Case.
We have stated that there is "no right [to refuse a breath test] in the statutory
sense, in that the arrestee will suffer adverse legal consequences."15 We have avoided
labeling refusal as a "right" because penalties may arise for choosing to refuse a breath
test. But this distinction is largely one of semantics; other states recognize a "right" to
refuse a breath test and assess legal consequences for exercising that right.16 The
distinction drawn by the State between a "right" and a "power" in the context of refusing
to submit to a breath test is not material to the outcome of this case.
C. The Police Voluntarily Gave Olson Additional Information Beyond
That Required By AS 28.35.032.
Our case law clearly establishes that the decision to refuse a breath test
17
In Copelin,
requires careful consideration. Copelin v. State provides a good example.
14 See, e.g., State v. Wilson, 987 P.2d 268, 273 (Haw. 1999) (collecting cases).
15 Copelin, 659 P.2d at 1212 (emphasis added) (citing AS 28.35.032).
16 See, e.g., Wilson, 987 P.2d at 272 (recognizing both an implied right to
refuse and penalties for refusing); State v. Cormier, 499 A.2d 986, 989 (N.H. 1985)
("The defendant's refusal is . . . the exercise of a legal right provided by the legislature.
. . . Thus a DWI defendant has a legal power to refuse to provide a sample that the State
could constitutionally demand." (emphasis added)).
17 659 P.2d 1206.
-7- 6602
----------------------- Page 8-----------------------
18
two arrestees asked to contact their attorneys before submitting to the breath test. Their
requests were denied, and the arrestees were subsequently convicted of operating motor
vehicles while intoxicated.19 After granting their petitions for hearing, we observed:
"The police are not required to inform the arrestee that he has the right to refuse;
however, if he does refuse, he must be advised of the consequences flowing from his
refusal and be permitted to reconsider his refusal in light of that information."20
Alaska Statute 28.35.032 requires police to inform arrestees that, among
other things, refusal is a "crime." The police had no obligation to inform Olson that, due
to his prior record, a conviction for refusal would be a felony, but the police went beyond
the statutory minimum and gave Olson additional information about the actual penalties
that could be imposed in his case. Alaska case law encourages the police to provide
additional information beyond the statutory minimum,21 but due process concerns can
arise if the information understates the consequences of the offense. Misinformation can
impair an arrestee's ability to make an informed decision about potential "consequences
flowing from his refusal,"22 and may actually discourage the arrestee from taking the
23
test. "The decision . . . whether to comply with an arresting officer's request to take a
18 Id. at 1209.
19 Id. at 1208-09.
20 Id. at 1212 n.15 (citing Wirz v. State, 577 P.2d 227, 230 (Alaska 1978)).
21 Svedlund v. Municipality of Anchorage, 671 P.2d 378, 385 n.9 (Alaska
App. 1983).
22 Copelin, 659 P.2d at 1212 n.15 (citing Wirz, 577 P.2d at 230).
23 See Svedlund, 671 P.2d at 385 n.9 ("Adequate warnings serve . . . the
obvious legislative goal of encouraging those accused of drunk driving to take the test.").
-8- 6602
----------------------- Page 9-----------------------
sobriety test is not a simple one,"24 and w e have said it should not be based on an
ignorance of the actual consequences of refusing.25 H ere, the implied consent form
understated the penalties for Olson's refusal. We conclude it would be fundamentally
unfair to allow the State to assert one penalty, on which the arrestee's decision relies, and
then later convict him of a charge that carries a greater penalty.26
D. Olson Bears The Burden Of Proving Prejudice From The Officer's
Extraneous And Erroneous Warning.
The State concedes that "if misinformation supplied by the police
reasonably induced an arrestee to refuse the test, then the evidence of the refusal should
be suppressed." But the State argues that "[m]isinformation provided by the police is not
actionable unless it induced a [DWI] arrestee into refusing to submit to the chemical
test." The court of appeals agreed with this argument, concluding: "Olson never offered
to prove that he indeed relied to his detriment on the erroneous information about a five-
year 'look back' for prior convictions when he made his decision to refuse the breath
test." But Olson counters that, contrary to the court of appeals' decision, "[t]here should
be no requirement that [he] 'prove' he would have done something differently."
24 Copelin, 659 P.2d at 1213.
25 See Svedlund, 671 P.2d at 385 n.9 ("Adequate warnings serve to insure that
a refusal will not be based on ignorance . . . .").
26 Numerous other jurisdictions agree that an officer's misstatements about
the consequences of refusing can violate due process. See, e.g., State v. Peirce, 571
S.E.2d 826 (Ga. App. 2002); State v. Wilson, 987 P.2d 268 (Haw. 1999); Meigs v. Kan.
Dep't of Revenue, 840 P.2d 448 (Kan. 1992); Forman v. Motor Vehicle Admin., 630
A.2d 753 (Md. 1993); McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848 (Minn.
1991); Teson v. Dir. of Revenue, State of Mo., 937 S.W.2d 195 (Mo. 1996); State v.
Koch, 103 P.3d 1280 (Wash. App. 2005). The State cites to no jurisdictions that hold
otherwise.
-9- 6602
----------------------- Page 10-----------------------
The State primarily relies on Hernandez v. State27 and Graham v. State28
to
support its argument that Olson must show that he was prejudiced by the incorrect
statement of the penalty for refusal, but these cases are not dispositive. Hernandez
concerned an arrestee's right to obtain an independent blood test.29 After Hernandez
submitted to the request that he take a breath test, he exercised his right to obtain an
independent blood test.30 The arresting officer informed Hernandez that Fairbanks
Memorial Hospital was the only facility available to perform the test because it was late
31 At the hospital, a receptionist stated - incorrectly - that the hospital's test
at night.
was inadmissible in court.32 Hearing the receptionist's statement, Hernandez looked to
the arresting officer for clari fication, but the officer only shrugged his shoulders.33
Hernandez interpreted the officer's response as an affirmation of the receptionist's
statement.34 He waived his right to the blood test and he was convicted of DWI.35
The
superior court found that Hernandez was in fact dissuaded from seeking the independent
test - and thus prejudiced - by the false information he received and by the officer's
27 28 P.3d 315 (Alaska App. 2001).
28 633 P.2d 211 (Alaska 1981).
29 Hernandez, 28 P.3d at 316-17.
30 Id.
31 Id.
32
Id. at 317.
33 Id.
34 Id.
35
Id. at 316-17.
-10- 6602
----------------------- Page 11-----------------------
subsequent conduct. 36 The issue on appeal was whether Hernandez's reliance on the
arresting officer's response was reasonable. The court of appeals held that if Hernandez
reasonably relied on the officer's conduct, "the State should be held accountable . . . for
the fact that the officer's conduct was a substantial factor in dissuading Hernandez from
pursuing his right to an independent blood test."37
The arrestee in Graham refused the breath test after being read her Miranda
38 39
rights. She claimed that the officer's Miranda warning that she had the "right to
remain silent" and that "anything said may be used against [her]" confused her about the
"right" to refuse to take the test or answer questions about whether she was refusing to
do so.40 Given the circumstances in Graham, we held:
[W]here an arrested person refuses to submit to a
breathalyzer test, the administering officer must inquire into
the nature of the refusal and, if it appears that the refusal is
based on a confusion about a person's rights, the officer must
clearly advise that person that the rights contained in the
Miranda warning do not apply to the breathalyzer
[41]
examination.
36 Id. at 316, 317-18.
37 Id. at 317.
38
Graham v. State, 633 P.2d 211, 212 (Alaska 1981).
39 Miranda v. Arizona, 384 U.S. 436, 444 (1966).
40 Graham, 633 P.2d at 213-14.
41 Id. at 215.
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----------------------- Page 12-----------------------
But we also explained that "[t]he defendant motorist . . . has the burden of showing that
he or she was in fact confused" by the officer's statements.42
Hernandez and Graham were cases where arrestees claimed to be
subjectively confused by the officer's statements or conduct. Viewing the facts of those
cases objectively, the court concluded that some people may have been confused by the
circumstances whereas others would not. Under those circumstances, we required the
defendants to show that they were actually confused by the officer's statement or
conduct. Olson's case is different. There is no reason to suspect he was confused by the
misinformation about penalties for refusal. The meaning of the officer's warning was
not ambiguous or unclear; it was simply incorrect. As Olson points out, "[t]here is no
dispute that [he] was provided with incorrect information that would have misled
anyone." We agree that the pre-printed form provided an objectively clear - albeit
wrong - statement that would have prevented a reasonable person who had prior DWI
convictions within the ten-year look back period from making a knowing and intelligent
decision about refusal. The Hernandez and Graham requirement for showing subjective
confusion does not apply here; Olson was objectively misinformed.
Even though the cases regarding subjective confusion do not control in this
case, we still must determine who bears the burden of proving prejudice when an arrestee
is objectively misinformed by the police. Olson argues that he should not have the
burden of proving that he w ould have done something differently because he w as
squarely within the class of defendants who would reasonably be misled by t he
misinformation: he had two DWI convictions within the preceding ten, but not five,
years, and the implied consent form erroneously informed him that refusal was a
misdemeanor, not a felony, for a person with this history. The State responds that Olson
42 Id. (citing State v. Severino, 537 P.2d 1187, 1190 (Haw. 1975)).
-12- 6602
----------------------- Page 13-----------------------
"is claiming that the misinformation negated his refusal," but Olson "should be required
to plead and prove those facts that entitle him to relief." The State points to two policy
reasons to support its position: (1) if Olson does not have to prove prejudice, he "would
receive a substantial windfall [even though] the misinformation he received played no
role in his decision to refuse to submit to the chemical test"; and (2) "proof of Olson's
motivation for refusing to submit is singularly available to him."
We have never directly addressed this issue before, but other jurisdictions
that have considered it require arrestees to show a causal connection between an officer's
43
In
extraneous and erroneous statement and the arrestee's decision to submit to testing.
Cuthbertson v. Kansas Department of Revenue, the holder of a co mmercial driver's
license was arrested on suspicion of DUI while driving a noncommercial vehicle.44 The
arrestee "received all the statutory notices required by law," which covered only the
effect that refusing or f ailing the test would have on the arrestee's noncommercial
license.45 The officer in Cuthbertson was not required to inform the arrestee of the
potential penalties associated with his commercial license, but the officer did so
anyway.46 U nfortunately, the extraneous information the officer provided was
43 We do not reach the question whether an arrestee must show prejudice if
the officer's misstatement concerns a statutorily-required warning, as opposed to
extraneous information. See Gonzales v. State Dep't of Licensing, 774 P.2d 1187, 1192-
93 (Wash. 1989) (explaining that a showing of prejudice is not required for criminal
cases when the misinformation concerns a statutorily-required warning, but that a
showing of prejudice is required for civil matters when the misinformation concerns not-
required information).
44 220 P.3d 379, 380 (Kan. App. 2009).
45 Id. at 383.
46 Id. at 381.
-13- 6602
----------------------- Page 14-----------------------
47
incorrect. The arrestee argued that his driving privileges should be fully reinstated
because he was incorrectly advised about the effect failing the test would have on his
commercial license. The Kansas Court of Appeals disagreed. It explained:
[The officer] was not required to provide any information to
Cuthbertson regarding the collateral damage to his
[commercial driver's license]. . . . However, once [the officer]
dove into the pool of gratuitous information, his responses
are required to be correct statements of the law. Even in this
situation, however, we revert to the fact that we are not
dealing with statutorily mandated notices. The consequence
is that Cuthbertson must demonstrate prejudice, which he
[48]
cannot, in order to show reversible error.
Olson was correctly informed of the statutorily-required warning, i.e., that
refusing the breath test was a crime. It was only in regard to the supplemental piece of
information - the length of the look back period used to determine whether refusal
constituted a misdemeanor or a felony - that incorrect information was provided. We
join those jurisdictions holding that under these circumstances the arrestee must prove
47 Id. Specifically, the officer informed Cuthbertson that the penalties were
the same for his commercial license as for his regular license: a suspension of two years
for refusing the test and a suspension of one year for failing. Id. In fact, Cuthbertson's
commercial license would have been suspended for life regardless of whether he failed
or refused the test. Id.
48 Id. at 383.
-14- 6602
----------------------- Page 15-----------------------
49
that he or she was prejudiced by the mistake. Indeed, the standard of review section
in Olson's brief acknowledges "[a] defendant who reasonably and detrimentally relies
on incorrect legal advice in deciding to refrain from acting should not be criminally
punished for that failure to act." (Emphasis added). Olson has the burden of proving
prejudice from the officer's misstatement; the question remains whether Olson satisfied
this burden.
The State contends that Olson did not argue that he was actually prejudiced
by the implied consent form's misinformation and the court of appeals agreed. Both
observed that Olson did not explicitly testify that he would have made a different
decision if he had been given correct information. But Olson argues on appeal that his
contention in superior court was that he was prejudiced by the police officer's incorrect
warning. Olson's motion to dismiss argued:
There is no doubt that [Olson] was misled as to the
consequences of his refusal to take a chemical test and there
is no doubt that because of his prior criminal record it had a
direct impact upon h is ability to make a knowing and
intelligent decision as to whether to refuse or not refuse the
chemical test.
Olson's motion to suppress added: " Had [Olson] been correctly informed of the
consequences, he would have known that he would be facing a felony as opposed to a
misdemeanor charge. H e would have certainly given greater consideration to his
49 See id.; see also Gonzales v. State Dep't of Licensing, 774 P.2d 1187, 1193
(Wash. 1989) (holding that where the arresting officer gave all the required warnings,
but they contained additional language which, under certain circumstances was
inaccurate, the driver must demonstrate that he was actually prejudiced by the inaccurate
warnings); State v. Ludwigson, 569 N.W.2d 762, 764 (Wis. App. 1997) ("[W]hen an
officer has exceeded the duty, and the extra information provided is erroneous, then it
is the defendant's burden to prove by a preponderance of the evidence that the erroneous
information caused the defendant to refuse to take the test.").
-15- 6602
----------------------- Page 16-----------------------
decision knowing that the consequence of his refusal [was] a f elony versus a
misdemeanor."
We agree with the State and the court of appeals that Olson presented no
evidence that he in fact misapprehended the potential class of offense he faced when he
refused, but we have never before stated that defendants in Olson's position are required
to do so. We cannot fault Olson for not putting forward this evidence because we have
not previously said that it is required. Because we now hold that it is Olson's burden to
prove that he was prejudiced by the extraneous and incorrect information the officer
provided him, we remand this case to give Olson an opportunity to make such a showing.
The superior court may allow additional evidence or hold new hearings as it deems
necessary.
V. CONCLUSION
We REVERSE the decision of the court of appeals and REMAND to the
superior court for proceedings consistent with this decision.
-16- 6602
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