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Jensen v. City and Borough of Juneau9/28/2005
rgin of error because there was no indication that the legislature had considered this margin of error when it established the legal limit for unless it falls within an exception to the hearsay rule or is offered for some non-hearsay purpose). See also Evidence Rule 802 (hearsay generally not admissible). driving in this state. But as we explained in Bushnell v. State, the legislature responded to the Haynes decision by enacting AS 28.40.060. This statute declares that "if 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."
In Bushnell, we held that AS 28.40.060 amounted to a legislative declaration that a properly calibrated Intoximeter 3000 was "tolerably inaccurate," and that the machine's inherent margin of error should be considered of no significance - that is, irrelevant. We further held that the legislature's action did not violate the defendant's constitutional right to due process.
Our decision in Bushnell fully supports Judge Froehlich's ruling. If, as we held in Bushnell, the working tolerance of the Intoximeter 3000 is irrelevant to the determination of a defendant's guilt, then Alaska Evidence Rule 402 forbids the introduction of this evidence.
Jensen argues that the Intoximeter's margin of error is relevant. However, Jensen does not discuss (indeed, she does not even mention) our decision in Bushnell - not even in her reply brief, after the City and Borough of Juneau expressly relied on Bushnell. This type of briefing is inadequate to preserve Jensen's claim of error. Jensen's point is therefore waived.
In a related argument, Jensen contends that this error was "compounded" by an instruction directing the jury to disregard the Intoximeter's margin of error if it found that the breath test was administered by a properly calibrated instrument. But Judge Froehlich withdrew this instruction before the jury deliberated. Because Jensen has not argued that this remedy was inadequate, we need not address this claim of error.
Conclusion
Jensen's conviction is AFFIRMED.
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