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Olson v. State7/20/2005
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. 4996
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
Amy M. Olson was convicted of misdemeanor driving while under the influence. On appeal, she claims that the district court erred when it found that she had not been subjected to a pretextual traffic stop. She also claims that the prosecutor made improper remarks during closing argument. For the reasons set out below, we conclude that the district court did not err when it found that the traffic stop was not a pretext. On the other hand, we agree that the prosecutor made improper remarks during closing argument. But we conclude that reversal is not required because the remarks did not appreciably affect the jury's verdict.
Facts and Proceedings
At about 3:50 in the morning on May 26, 2002, Alaska State Trooper Robert
J. Wurst saw a Nissan pickup truck leaving the Boatel Bar in Fairbanks. He followed the vehicle and saw it turn into a gas station's parking lot. As he passed the vehicle, he saw that its registration was expired. He also noticed that the driver was no longer in the vehicle. Soon after, he saw the driver return to the vehicle and drive away. Wurst saw no moving violations, but he stopped the vehicle because its registration was expired. Olson was the driver.
Upon contact with Olson, Wurst noticed signs that she might be intoxicated: she fumbled while searching for an appropriate identification card, and she had a strong odor of alcohol, bloodshot, watery eyes, and slurred speech. Wurst administered five field sobriety tests, and Olson failed them all. After she failed the field sobriety tests, Wurst arrested her for driving while under the influence. Later, a DataMaster test indicated that her blood alcohol content was .151 percent.
Prior to trial, Olson moved to suppress the evidence. She claimed that the traffic stop was unlawful because it was a pretext. She argued that Wurst really stopped her because he wanted to see if she was intoxicated. At an evidentiary hearing on this motion, Wurst testified that he suspected Olson might be driving while under the influence because of the late hour and because she was leaving the parking lot of a bar. But he also said that even though he saw no moving violations, he had probable cause to stop Olson for the registration violation.
After the hearing, District Court Judge Raymond M. Funk allowed Olson to submit a brief on pretext stops. But Judge Funk also noted that under Hamilton v. State, even if the trooper stopped Olson because he suspected she was intoxicated, if he had a valid objective basis for the stop -- like an equipment violation -- then the stop was lawful. After the additional briefing, Judge Funk denied the motion to suppress without further comment.
Olson was tried before a jury. During closing argument, Olson's attorney listed what he believed were flaws in how the field sobriety and DataMaster tests were conducted. He then pointed out that despite Olson's high DataMaster result of .151 percent, Wurst had not seen any moving violations while following Olson. The attorney argued that Olson's ability to drive perfectly was strong evidence that the DataMaster result was inaccurate. The attorney emphasized that the trooper, trained to look for intoxicated drivers, did not see her
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