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Jensen v. City and Borough of Juneau9/28/2005
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
No. 5004
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
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.
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.
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 ina
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