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Bertilson v. State2/14/2003
MANNHEIMER, Judge, concurring.
Dan Allan was the attorney for the appellant.
Following a jury trial, John L. Bertilson was convicted of felony driving while intoxicated. 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 judge's former law clerk.
Based on our recent decision in Conrad v. State, 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 Bertilson's 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 Bertilson's 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 Bertilson's 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.
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. Bertilson's 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 defendant's 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, sough
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