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Lewis v. State (8/14/2015) ap-2468

Lewis v. State (8/14/2015) ap-2468


              The text         of   this opinion can be corrected before the opinion is published in the                            

             Pacific Reporter              .   Readers are encouraged to bring typographical or other formal                               

             errors to the attention of the Clerk of the Appellate Courts:    

                                                   303 K Street, Anchorage, Alaska  99501  

                                                                    Fax:  (907) 264-0878  

                                                        E-mail:  corrections@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                     


                                                                                                      Court  of  Appeals  No.  A-11189  

                                                      Appellant,                                    Trial  Court  No.  3PA-10-2656  CR  


                                                                                                                    O  P  I  N  I  O  N  



                                                      Appellee.                                         No. 2468 - August  14, 2015  


                           Appeal from the Superior Court, Third Judicial District, Palmer,  


                           Vanessa H. White, Judge.  


                           Appearances:  Laurence Blakely, Mendel & Associates, under  


                           contract with the Public Defender Agency, and Quinlan Steiner,  


                           Public  Defender, Anchorage, for the Appellant.   Timothy W.  


                           Terrell,          Assistant             Attorney             General,             Office          of       Special  


                           Prosecutions                 and        Appeals,            Anchorage,                and        Michael             C.  


                           Geraghty, Attorney General, Juneau, for the Appellee.  


                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  


                           District Court Judge.*  



                           Judge MANNHEIMER.  


              Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                             

----------------------- Page 2-----------------------

                                                         In this case, the State introduced scientific evidence - specifically, (1) the                                                                                                                                                                                                                            

result of a breath test conducted on a hand-held "preliminary" breath testing device, and                                                                                                                                                                                                                                                                       

 (2)   the result of                                                    a   chemical field test for marijuana - without first establishing the                                                                                                                                                                                                                   

 scientific validity of either test as required by                                                                                                                                        State v. Coon                                            , 974 P.2d 386 (Alaska 1999).                                                                                                 

                                                          (In   Coon,   the   Alaska   Supreme   Court   adopted   the   federal test                                                                                                                                                                                                           for   the  

 admissibility                                                of                  scientific                                     evidence                                      announced                                              in              Daubert                                     v.               Merrell                                  Dow  

Pharmaceuticals, Inc.                                                                           , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).)                                                                                                                                                                                                   

                                                         When the defendant objected that the State had not laid a proper foundation                                                                                                                                                                                               

 for this evidence under the                                                                                      Daubert-Coon  rule, the trial judge mistakenly ruled that the                                                                                                                                                                                   

 defendant had already waived any                                                                                                                 Daubert-Coon  objection by failing to raise this issue                                                                                                                                                  

before trial.                                         The judge therefore                                                                          allowed the State to introduce this evidence even                                                                                                                                                      

though   the   State   never   established   the   required   foundation   for   the   evidence   under  


                                                         We take this occasion to clarify two legal principles.                                                                                                                                                                 First, absent a pre-trial                                  

 order expressly requiring the litigation of a                                                                                                                              Daubert-Coon  issue before trial, a litigant can                                                                                                                                     

 object to scientific evidence on                                                                                                     Daubert-Coon   grounds when the evidence is offered.                                                                                                                                                                                       

 Second,   if   a   party   offers   evidence   that   qualifies   as   "scientific"   for   purposes   of   the  

Daubert-Coon  rule, and another party objects to the lack of foundation, the trial judge                                                                                                                                                                                                                                                                

must   not   admit   this   evidence   unless   the   proponent   of   the   evidence   establishes   its  

 scientific validity under                                                                         Daubert-Coon.  

                                                         Nevertheless, as we explain in this opinion, we conclude that the erroneous                                                                                                                                                                                                  

 admission of this scientific evidence was harmless under the facts of Lewis's case, and                                                                                                                                                                                                                                                                        

we therefore affirm his convictions.                                                                                                                     

                                                                                                                                                                               -  2 -                                                                                                                                                                        2468

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                                           Underlying facts   

                                                                                  The Wasilla police received a call from a person who reported that a small                                                                                                                                                                                                                                                                                                                                              

white   truck   was   being   driven   erratically,   and   that   the   truck   had   stopped   in   the  

 intersection of the Palmer-Wasilla Highway and the Parks Highway.                                                                                                                                                                                                                                                                                                                                                                 

                                                                                  When a police officer arrived at the intersection, he saw that the truck was                                                                                                                                                                                                                                                                                                                                                          

 still there, parked in the left-hand turn lane, and that its engine was not running.                                                                                                                                                                                                                                                                                                                                                                                                                            The  

person who had called the police was also still at the intersection, watching the truck.                                                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                                  The police officer saw someone get out of the truck on the driver's side and                                                                                                                                                                                                                                                                                                                                                             

head toward                                                                        a   nearby gas station.                                                                                                                   This person was George W. Lewis.                                                                                                                                                                                                       The officer   

 contacted Lewis, and he observed that Lewis appeared to be intoxicated:                                                                                                                                                                                                                                                                                                                                                                                      there was an                                                       

 odor of alcohol about Lewis's person; he had bloodshot, watery eyes; his speech was                                                                                                                                                                                                                                                                                                                                                                                                                                  

 slurred; and he swayed from side to side while standing.                                                                                                                                                                                                                                                                                                

                                                                                  When the officer asked Lewis why he had left his truck in the middle of the                                                                                                                                                                                                                                                                                                                                                                

 intersection, Lewis explained that the truck would not start.                                                                                                                                                                                                                                                                                                                         When the officer asked                                                                                              

Lewis how much he had had to drink that evening, Lewis answered, "Not enough."                                                                                                                                                                                                                                                                                                                                                                                                                                                    

                                                                                  The officer administered three field sobriety tests to Lewis,                                                                                                                                                                                                                                                                                                                     and Lewis's   

performance indicated that he was intoxicated.                                                                                                                                                                                                                                                The officer then asked Lewis to submit                                                                                                                                                                   

to a preliminary breath test.                                                                                                                                                The test result was a blood alcohol level of .217 percent.                                                                                                                                                                                                                                                                                                         

                                                                                  At this point, the officer placed Lewis under arrest for driving under the                                                                                                                                                                                                                                                                                                                                                                

 influence.    During the arrest process, the officer asked Lewis if he was carrying any                                                                                                                                                                                                                                                                                                                                                                                                                               

weapons or any other objects on his person that the officer should be concerned about.                                                                                                                                                                                                                                                                                                                                                                                                                                                             

Lewis answered no, but that he had marijuana in his pocket.                                                                                                                                                                                                                                                                                                                The officer pulled a baggie                                                                                           

 out of Lewis's pants pocket, and he subjected the contents of the baggie to a chemical                                                                                                                                                                                                                                                                                                                                                                                          

 field test.                                              The field test indicated that the material in the baggie was marijuana.                                                                                                                                                                                                                                                                                                                                                                      

                                                                                  In the meantime, a computer check of Lewis's license status showed that                                                                                                                                                                                                                                                                                                                                                                

his license was revoked.                                                                                                                               

                                                                                                                                                                                                                                                           -  3 -                                                                                                                                                                                                                                                     2468

----------------------- Page 4-----------------------

                                  The officer transported Lewis to the police station, where Lewis submitted                                                                                        

to the statutorily required breath test on a DataMaster.                                                                                      This test showed that Lewis's                              

blood alcohol level was .24 percent.                                                          

                                  Based on the foregoing, and based on Lewis's prior convictions for driving                                                                                                

under the influence, Lewis was charged with felony driving under the influence, driving                                                                                                                     

while   his   license   was   revoked,   and   sixth-degree   controlled   substance   misconduct  

                                                                    1  He was convicted of all three offenses following a jury trial.  

(possession of marijuana).                                                                                                                                                                                                     


                  The superior court's Daubert-Coon rulings  


                                  On the morning that Lewis's trial began, Lewis's attorney filed a motion  


in limine asking the superior court to prohibit the State from introducing the result of the  


preliminary breath test, on the basis that there had been no showing that the preliminary  


breath test device met the standard for scientific evidence set forth in Daubert and Coon.  


                                  The prosecutor responded to the defense attorney's motion by conceding  


that the State could not show that  the preliminary breath test met the Daubert-Coon  


standard.  For this reason, the prosecutor explained, he would not offer evidence that the  


preliminary breath test yielded a result of .217 percent blood alcohol.  


                                  Instead, the prosecutor stated that he would merely introduce evidence that  


the  preliminary  breath  test  result  indicated  "the  presence  ...  of  alcohol"  in  Lewis's  


system.  The prosecutor told the court that this was the "standard" way that preliminary  


breath test results "[had] always been addressed ... in every other DUI trial that [he had]  




                                  After taking a brief recess to consider the matter, the judge agreed that the  


State had failed to establish that the preliminary breath test device met the Daubert-Coon  


                 AS 28.35.030(n), AS 28.15.291(a)(1), and AS 11.71.060(a)(2), respectively.                                                                                                                 

                                                                                                         -  4 -                                                                                                  2468

----------------------- Page 5-----------------------

 standard - if the test result was offered to prove that there was a specific amount of                                                                                                                                                                                                                                                                                                                                                                                                                                         

alcohol in a person's system.                                                                                                                                                             However,   the judge declared,                                                                                                                                                                     without any supporting                                                         

evidence or supporting legal authority, that the preliminary breath test device "meets the                                                                                                                                                                                                                                                                                                                                                                                                                                  

 ...  Daubert-Coon  standard" when the test result is merely offered to prove "the existence                                                                                                                                                                                                                                                                                                                                                                                           

of alcohol" in a person's system.                                                                                                                                                                          

                                                                                  The judge also ruled (in the alternative) that Lewis's motion to prohibit the                                                                                                                                                                                                                                                                                                                                                            

 State from introducing the preliminary breath test evidence was "untimely".                                                                                                                                                                                                                                                                                                                                                                                                 The judge   

noted that, earlier, Lewis's attorney had announced that the defense was ready for trial.                                                                                                                                                                                                                                                                                                                                                                                                                                                        

The judge declared that, once the parties announced themselves ready for trial, "the time                                                                                                                                                                                                                                                                                                                                                                                                                           

 for [  Daubert-Coon] motions [had] passed."                                                                                                                                                                                                                                 

                                                                                  During the State's case, the prosecutor asked the arresting officer if Lewis                                                                                                                                                                                                                                                                                                                                             

took a preliminary breath test.                                                                                                                                                       The officer testified that Lewis submitted to this test, and                                                                                                                                                                                                                                                                      

that the test result indicated "a presence of alcohol".                                                                                                                                                                                                                                                                         

                                                                                  The prosecutor then asked the arrestingofficer about                                                                                                                                                                                                                                                                     the officer's pat-down  

 search of Lewis's pockets at the time of the arrest.                                                                                                                                                                                                                                                               The officer testified that Lewis told                                                                                                                                                              

him that there was "pot" in                                                                                                                                      his pocket -and                                                                                           that, after Lewis said this, the officer pulled                                                                                                                                                                               

a small baggie from Lewis's pocket.                                                                                                                                                                                          According to the officer, this baggie contained "a                                                                                                                                                                                                                                                 

 substance that appeared to be marijuana".                                                                                                                                                                                                                        

                                                                                  The officer explained that, because of his police training and experience,                                                                                                                                                                                                                                                                                                            

he was personally familiar with what marijuana looked and smelled like.                                                                                                                                                                                                                                                                                                                                                                      The officer told                                                          

the jury that, when he examined the contents of the baggie from Lewis's pocket, "that's                                                                                                                                                                                                                                                                                                                                                                                                             

what it looked like to me."                                                                                                                                                  And the officer added that the substance in                                                                                                                                                                                                                                                 the   baggie  

emitted the "very distinctive odor" of marijuana.                                                                                                                                                                                                                                                        

                                                                                  The officer then testified that he performed a chemical field test on the                                                                                                                                                                                                                                                                                                                                                               

 substance in the baggie,                                                                                                                              and that this substance "did react".                                                                                                                                                                                               At   this   point,   Lewis's  

                                                                                                                                                                                                                                                          -  5 -                                                                                                                                                                                                                                                     2468

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 attorney objected (outside the presence of the jury) that there had been no showing that                                                                                                                                                                                                                                                                                                                                                  

this marijuana field test was scientifically reliable under the                                                                                                                                                                                                                                                 Daubert-Coon  standard.    

                                                                      The   prosecutor   conceded   that   evidence   of   the   field   test   result   was  

 "scientific" evidence for purposes of the                                                                                                                                                                       Daubert-Coon  rule.   But instead of offering a                                                                                                                                                                                        

Daubert-Coon   foundation for this evidence, the prosecutor suggested that the problem                                                                                                                                                                                                                                                                                                                             

 could be solved by giving the jury a limiting instruction - an instruction that the field                                                                                                                                                                                                                                                                                                                                            

 test result, "in and of itself", was not sufficient to prove the State's case with regard to                                                                                                                                                                                                                                                                                                                                                      

 the charge of marijuana possession.                                                                                                                                                       

                                                                      Again,   the   trial judge                                                                                         ruled   that   the   defense   attorney's   Daubert-Coon  

 objection was not timely.                                                                                                       Nevertheless, the trial judge allowed the prosecutor to conduct                                                                                                                                                                                                                      

 a  voir dire                                         examination of the arresting officer to see whether the marijuana field test met                                                                                                                                                                                                                                                                                                      

 the  Daubert-Coon  standard for scientific validity.                                                                                                                                                                                                            

                                                                      During this                                               voir dire                                         testimony, the police officer explained how the field                                                                                                                                                                                                

 test worked.                                                      He told the court that the testing device was a "small packet" that had                                                                                                                                                                                                                                                                                                

 "some chemicalin                                                                            it".   A person conducting the test "take[s] a small part of the substance  

 [to be tested]" and puts it in the small packet.                                                                                                                                                                                               Then, according to the officer, "there's                                                                                                                            

 three different glass, little amulets [                                                                                                                                           sic:    ampules] in there, and you break [them] in a                                                                                                                                                                                                                

 sequence, and [you] agitate the substance.                                                                                                                                                                                   [And] if it turns a particular color and then                                                                                                                                                            

 separates,   [that is] a presumptive positive test for the presence of THC" (the active                                                                                                                                                                                                                                                                                                                                      

 ingredient in marijuana).                                                                                                      2  



                                   More specifically, the officer described the testing procedure as follows:                                                                                                                                                                                                                                                                                               

                                                                      Officer:   It's very simple.                                                                                                ...   It's three steps, [and] it's got the instructions                                                                                                                           

                                   right on the - every little packet you use.                                                                                                                                                                       [You] put the substance in; you break                                                                                                                         

                                   the first [ampule], [you] agitate it for about 30 seconds, [then] break the second                                                                                                                                                                                                                                                                                     

                                    [ampule], [and] if you see a color change, then you break the third [ampule], and                                                                                                                                                                                                                                                                                                       

                                   then if you see a separation of the color, then that's considered a positive test, a                                                                                                                                                                                                                                                                                                                 

                                    ... presumptively positive test [for marijuana].                                                                                                                                                                              

                                                                                                                                                                                                                     -  6 -                                                                                                                                                                                                             2468

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                                                                The officer added that he had used this field test "hundreds upon hundreds                                                                                                                                                                                                                                      

 of times", and that this field test had been used in law enforcement for close to twenty                                                                                                                                                                                                                                                                                                 


                                                                After the officer gave                                                                                        this testimony,                                                              the trial judge asked the defense                                                                                          

 attorney if he continued                                                                                                 to   object to the testimony on                                                                                                                   Daubert-Coon   grounds.    The  

 defense attorney said that he did.                                                                                                                             The judge then suggested that the problem could be                                                                                                                                                                                            

 solved by telling the jury that the field test result only created a "presumption" that the                                                                                                                                                                                                                                                                                                                

 substance was marijuana - that it was                                                                                                                                                            not   conclusive proof.                                                                                        The defense attorney                                              

 continued to object to the evidence.                                                                                                                                        

                                                                When the judge called upon the prosecutor                                                                                                                                                                                to   respond to the defense                                                                  

 attorney's renewed objection, the prosecutor argued that the State was not required to                                                                                                                                                                                                                                                                                                                         

 affirmatively establish a                                                                                   Daubert-Coon  foundation for the marijuana field test.                                                                                                                                                                                                                     Rather  

 (the prosecutor argued), it was the                                                                                                                                defense attorney's                                                                         burden to provide the court with                                                                                                       

 some good reason to believe that the challenged evidence might not meet the                                                                                                                                                                                                                                                                                                  Daubert- 

 Coon  standard.     

                                                                The prosecutor was unable to supply a court decision to support this legal                                                                                                                                                                                                                                                            

 contention, but he told the trial judge that                                                                                                                                                                "it's understood that there has to be some                                                                                                                                         

 showing that there's [a                                                                                      Daubert-Coon] issue."                                                                                             

                                                                The   prosecutor   also   agreed   with   the   trial judge's                                                                                                                                                                                            suggestion   that   any  

Daubert-Coon  problem could be solved by telling the jury, "This is just a field test.                                                                                                                                                                                                                                                                                                                         It  

 is not conclusive.                                                                 ...   It's a presumptive field test - and you are not to presume, from                                                                                                                                                                                                                                         

that test alone, that the substance is indeed marijuana.                                                                                                                                                                                                        But you can consider it with any                                                                                                         

 other evidence [presented]."                                                                                                              

                                                                After hearing the arguments of counsel, the judge took a recess to re-read                                                                                                                                                                                                                                                

the   Coon   decision.    When the court went back on record, the judge declared that the                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                    -  7 -                                                                                                                                                                                             2468

----------------------- Page 8-----------------------

marijuana field test evidence would be admitted because Lewis had waived any                                                                                                                           Daubert- 

Coon  objection:   


                                                    The Court                 : The          Daubert-Coon  analysis requires notice                                            

                                   and a full-blown eviden[tiary] hearing in order for the Court                                                                               

                                   to engage in what is a fairly meticulous analysis.                                                                         ...   For that   

                                   reason, motions under                                    Daubert  and  Coon  need to be brought                                        

                                   pre-trial,   so   that   that   analysis   can   be    undertaken   in   a  

                                   reasonable and prudent fashion.                                                      I find that [this] issue has                                 

                                   been waived.                           ...    [T]he defendant did not bring a timely                                                      

                                   motion for a                   Daubert-Coon  hearing.   

In other words, the judge admitted the marijuana field test evidence even though there                                                                                                                             

was nothing in the record to establish the scientific validity of the State's field test under                                                                                                                   

the  Daubert-Coon  standard.    

                                   The judge then stated that she would employ Evidence Rule 403 to mitigate                                                                                                

the consequences of her ruling:                                                   



                                                    The Court:  I still need to evaluate ... whether ... the  


                                   field test results ... are more prejudicial than probative.  And  


                                   my  finding is that ... the [test] results are relevant; they're  


                                   germane  to  the  issue  of  whether  or  not  ...  Mr.  Lewis  


                                   possessed marijuana.  The possible prejudice is that the test  


                                   is not a conclusive test, but merely an initial field test of the  




                                                    [I         conclude   that   this]   prejudice   is   successfully  


                                   addressed by a limiting instruction that indicates that this is  


                                   a field test only, [and that] it does not conclusively establish  


                                   that  the  substance  being  tested  is  marijuana.                                                                               It  merely  


                                   provides some evidence ... that the substance is [or] could be  


                                   marijuana - and that that evidence, standing alone, does not  


                                   meet the State's burden of proof as to possession. ... [T]hat's  


                                   the  instruction  I  intend  to  give.                                                    And  so  I  will admit  the  


                                   [marijuana field test] evidence with that limiting instruction.  

                                                                                                          -  8 -                                                                                                    2468

----------------------- Page 9-----------------------

                                                              Following this ruling, the officer testified (in the jury's presence) that he                                                                                                                                                                                                                                                     

took the substance from Lewis's pocket and tested it by putting it into a container "that                                                                                                                                                                                                                                                                                           

has some chemicals in it."                                                                                                 The officer put the substance into the container, added the                                                                                                                                                                                                      

 chemicals "in a certain sequence", and then watched to see whether there was a change                                                                                                                                                                                                                                                                                 

 of color, followed                                                                   by a color separation.                                                                                    The officer testified that he observed these                                                                                                                                       

reactions - indicating that the substance was marijuana.                                                                                                                                                                                                             

                                Why the superior court's rulings were wrong                                                                                                                                      

                                                              When a litigant wishes to offer data or results derived from a scientific test                                                                                                                                                                                                                                                

 or a scientific analysis, "it is a prerequisite that the scientific test or analysis meet the test                                                                                                                                                                                                                                                                                         

 for admissibility under                                                                              Daubert  and   Coon."    Guerre-Chaley v. State                                                                                                                                                                 , 88 P.3d 539, 544                                                  

 (Alaska App. 2004).                                                                           

                                                              Moreover, when a party raises a                                                                                                              Daubert-Coon  objection to evidence that                                                                                                                                       

 qualifies   as   "scientific",   the   burden   of   establishing the                                                                                                                                                                                             required   foundation   for   that  

 evidence falls on the                                                                         proponent  of the evidence.                                                                                                    It is the proponent's task to establish                                                                                              

the scientific validity of the analysis                                                                                                                                 and/or the procedures that yielded this evidence.                                                                                                                                                                                     

                                                                                                                                                        3         A court is not  allowed  to simply assume that the  

 Guerre-Chaley, 88 P.3d at 544.                                                                                                                                                                                                                                                                                                                                                              

 evidence is scientifically valid in the absence of evidence to the contrary.  



                               See   also   Burnett   v.   State,   815   N.E.2d   201,   209   (Ind.   App.   2004);   Gilbert   v.  

DaimlerChrysler Corp.                                                                                   , 685 N.W.2d 391, 408 (Mich. 2004);                                                                                                                                State v. Casillas                                                        , 782 N.W.2d           

 882, 836-37 (Neb. 2010);                                                                                         Harris v. State                                                    , 424 S.W.3d 599, 607 (Tex. App. 2013);                                                                                                                                           Jackson  

 v.  State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000);                                                                                                                                                                               United States v. Mooney                                                                                      , 315 F.3d 54,                              

 63 (1st Cir. 2002);                                                             In re Paoli Railroad Yard PCB Litigation                                                                                                                                                , 35 F.3d 717, 743-44 (3rd Cir.                                                                                    

  1994);  Moore v. Ashland Chemical Inc.                                                                                                                                     , 151 F.3d 269, 276 (5th Cir. 1998);                                                                                                                     United States v.                                              

Nacchio , 555 F.3d 1234, 1241, 1244 (10th Cir. 2009);                                                                                                                                                                                             United States v. Frazier                                                                                      , 387 F.3d              

  1244, 1260 (11th Cir. 2004).                                                                                                    

                                                                                                                                                                                            -  9 -                                                                                                                                                                                      2468

----------------------- Page 10-----------------------

                              If the scientific validity of a particular type of evidence has already been                                                                               

resolved in prior litigation, the proponent of the evidence (and the judge who is asked                                                                                                

to rule on the admissibility                                       of the evidence) can normally rely on that earlier court                                                             

decision as establishing the foundation required by                                                               Daubert  and  Coon.   See Samaniego   

                                                                                                                       4    In such instances, the trial court  

v.   City of Kodiak                     , 80 P.3d 216, 220 (Alaska 2003).                                                                                                               

need not hold a Daubert-Coon hearing, and the court may admit the evidence based on  


the earlier judicial determination that the evidence  is  scientifically valid - unless the  


opponent  of  the  evidence  provides  a  good  reason  to  re-examine  the  earlier  court  


                     5      If  the  opponent  of  the  evidence  does  offer  good  reason  to  doubt  the  


continuing validity of the prior court decision, then the burden once again falls upon the  


proponent of the evidence to establish its scientific validity under Daubert  and Coon. 6  


                              In  Lewis's  case,  the  State  relied  on  two  pieces  of  evidence  that  are  


unquestionably "scientific" evidence for Daubert-Coon purposes.  Both the preliminary  


breath test device and the marijuana field test kit are classic examples of testing devices  


that yield results that can not be meaningfully explained or cross-examined without a  


scientific foundation.  


                              In the case of the preliminary breath test, a person blows into the testing  


device, and the device responds with a displayed number.   At Lewis's trial, the State  


asserted that this displayed number will either prove or disprove the presence of alcohol  


in the tested person's blood.  But under the Daubert-Coon rule, the trial court was not  


supposed to let the State make  this  assertion to the jury unless and until the State  



               See also Johnson v. Commonwealth                                               , 12 S.W.3d 258, 262 (Ky. 1999);                                         Hernandez v.   

State, 116 S.W.3d 26, 31 n. 11 (Tex. Crim. App. 2003) (                                                                en banc            ).   



               See Johnson v. Commonwealth, 12 S.W.3d 258, 262 (Ky. 1999).  



               Johnson , 12 S.W.3d at 262; Samaniego, 80 P.3d at 220.  


                                                                                           -  10 -                                                                                       2468

----------------------- Page 11-----------------------

demonstrated the scientific validity of the principles underlying the design and operation                                                                                                                                                                                                                                                                                                            

of the testing device.                                                                                     

                                                                    In Lewis's case, the State presented no evidence concerning the scientific                                                                                                                                                                                                                                                           

principles underlying the design and operation of the preliminary breath testing device.                                                                                                                                                                                                                                                                                                                                                                

The prosecutor simply asserted that it was "standard" for courts to admit this evidence.                                                                                                                                                                                                                                                                                                                                                                

Despite the lack of any foundational evidence, and despite the lack of any prior court                                                                                                                                                                                                                                                                                                                                    

decision   establishing the                                                                                                    scientific   validity   of   the   preliminary   breath   testing device,   

Lewis's   trial   judge   found   that   this   device   was    a   scientifically   valid   method   of  

determining the presence of alcohol in a person's system.                                                                                                                                                                                                                                            This was error.                                                                       

                                                                    The same thing is true of the marijuana field testing kit.                                                                                                                                                                                                                                According to the                                                        

police   officer's   voir dire                                                                                                      testimony, this testing kit consists of a small container with                                                                                                                                                                                                                            

three ampules of unidentified liquid chemicals.                                                                                                                                                                                                The tester places a substance into the                                                                                                                                               

container and then breaks the ampules one by one, looking first for a change of color and                                                                                                                                                                                                                                                                                                                                         

then for a separation of color.                                                                                                                         According to the officer, these two observations - the                                                                                                                                                                                                                       

color   change, followed by the color separation - constitute evidence that the tested                                                                                                                                                                                                                                                                                                                                

 substance is marijuana.                                                                                                  Again,   under the                                                                             Daubert-Coon  rule, the trial court was not                                                                                                                                                               

 supposed to let the State make this assertion to the jury unless                                                                                                                                                                                                                                                                          and   until   the State   

demonstrated the scientific validity of the principles underlying the design and operation                                                                                                                                                                                                                                                                                                            

of the testing kit.                                                                    

                                                                    It may be true,                                                                  as the officer testified,                                                                                                  that he had personally used the                                                                                                                     

marijuana testingkit "hundreds upon hundreds" of times, and it may also                                                                                                                                                                                                                                                                                                  be true                              that this  

testing kit is used frequently by law enforcement agencies.                                                                                                                                                                                                                                           But the fact that this testing                                                                                

device might be commonly used by police officers in the field does not exempt the State                                                                                                                                                                                                                                                                                                                                    

 from establishing the scientific validity                                                                                                                                                                  of the test under                                                                         Daubert   and   Coon.    As the   

Minnesota   Court   of   Appeals   has   remarked,   "lengthy   use   of   a   method    by   law  

 enforcement, and even lengthy unquestioningacceptance                                                                                                                                                                                                                                    by [the] courts, does                                                                                   not [itself]  

                                                                                                                                                                                                            -   11 -                                                                                                                                                                                                           2468

----------------------- Page 12-----------------------

exempt [scientific] evidence from scrutiny [under the                                    Daubert  test]."   State v. Dixon                  , 822   

N.W.2d 664, 671-72 (Minn. App. 2012).                                  7  

                       As we explained earlier, Lewis's trial judge ruled that the  State was not  


required to establish the scientific validity of the marijuana field test because Lewis had  


waived any Daubert-Coon  objection to this evidence - by failing to object to the  


evidence before trial.  This, too, was error.  


                       This  Court's   only  prior  statement  on  this  issue  is  contained  in  an  


unpublished decision,  Trout-Clark v. State, 1993 WL 13157037 (Alaska App. 1993).  


Trout-Clark  involved  the  State's  attempt  to  introduce  evidence  of  a  drunk-driving  


defendant's performance on a horizontal gaze nystagmus (HGN) field test.  On appeal,  


the State suggested that it should have been excused from establishing the scientific  


foundation of the HGN test because the defendant "waited until the trial was beginning  


                                                                            8  We rejected the State's contention:  

... before moving to exclude the HGN test".  



                       While it is true that suppression motions must normally  be  


                       filed before trial(see CriminalRule 12(b)(3)), [the defendant]  


                       was not seeking "suppression" of the HGN test.  ...  Rather,  


                       [the  defendant]  argued  that  the  HGN  evidence  should  be  


                       excluded because the State failed to establish the foundational  


                       facts required to secure its admission [as scientific evidence].  


                       A "lack of foundation" objection to proffered evidence need  


                       not be made before trial.  


Id. , 1993 WL 13157037 at *3.  



            Quoting  State v. Hull             , 788 N.W.2d 91, 103 n. 3 (Minn. 2010).                            



           Id. at *3.  


                                                                     -  12 -                                                                2468

----------------------- Page 13-----------------------

                             Other courts agree that, absent a court order or the parties' agreement that                                                                            

a  Daubert  issue should be litigated before trial, a                                                 Daubert  objection to scientific evidence                           


is timely if it is made at trial when the evidence is offered.                                                                     


                             It is true,  as Lewis's trial judge remarked,  that it is generally better to  


conduct Daubert-Coon  litigation before the trial begins - because the assessment of  


scientific validity under the Daubert-Coon test generally requires an evidentiary hearing,  


the testimony of expert witnesses, and a "fairly meticulous analysis".  But when Lewis's  


attorney raised the Daubert-Coon  issue after Lewis's trial began, the trial judge chose  


an  improper  solution  to  the  procedural difficulty:                                                             the  judge  precluded  Lewis  from  


objecting to the State's scientific evidence - thus effectively allowing the State  to  


introduce its evidence without having to establish the scientific validity of the evidence  


under the Daubert-Coon test.  


                             As this Court explained in  Guerre-Chalet,  88 P.3d at  544,  if evidence  


constitutes  "scientific"  evidence  for  purposes  of  the  Daubert-Coon  rule,  and  if  the  


method by which this evidence was derived has no scientific validity, then the evidence  


is essentially irrelevant.  At the same time, such evidence presents the danger that the  


verdict  will  be  influenced  by  assertions  "that  [have]  no  basis  in  science"  but  are  


nevertheless cloaked with an "aura of scientific respectability".  Ibid.  


                             In Lewis's case, the defense attorney raised proper objections to both the  


preliminary breath test and the marijuana field test, and there was no prior court decision  


establishing the scientific validity of either test.  Accordingly, the trial judge should have  


               See Love v.Commonwealth                                  ,55 S.W.3d816,822 (Ky.2001);                                      Commonwealth v. Daye                              , 

587 N.E.2d 194, 207 (Mass. 1992);                                          State v. Moore                  , unpublished, 647 N.W.2d 706 (Table)                              

(N.D.  2002), 2002 WL 1472300 at *1;                                              State v. Humberto                     , 963 N.E.2d 162, 171 (Ohio App.                            

2011);  Davis v. State                       , unpublished, 2004 WL 1404004 at *6 (Tex. App. 2004).                                                                  

                                                                                        -   13 -                                                                                   2468

----------------------- Page 14-----------------------

precluded the prosecutor from introducing the                                                                                                                                                                                                                                                                                   challenged evidence unless the State                                                                                                                                                                                           

 (as the proponent of the evidence) affirmatively established its scientific validity.                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                                          The State needed expert testimony to establish the required foundations for                                                                                                                                                                                                                                                                                                                                                                                                           

these two tests under                                                                                                                          Daubert-Coon.   But the State did not give pre-trial notice of any                                                                                                                                                                                                                                                                                                                                                         

 expert witnesses on these subjects. Thus, if either party was at fault for forcing the judge                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

to hold a mid-trial                                                                                                      Daubert-Coon  hearing, it was the State.                                                                                                                                                                                                                                          

                                                                                          The trial judge's approach to this problem - prohibiting the opponent of                                                                                                                                                                                                                                                                                                                                                                                                                  

the scientific evidence from challenging it, and allowing the proponent of the scientific                                                                                                                                                                                                                                                                                                                                                                                                                                              

 evidence to introduce the evidence without establishing a scientific foundation for it -                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

would actually reward lawyers who act in ignorance of (or worse, in conscious disregard                                                                                                                                                                                                                                                                                                                                                                                                                                                

 of) the requirements of the                                                                                                                                                         Daubert-Coon  rule.    

                                                                                          For these reasons, the trial judge committed error by allowing the State to                                                                                                                                                                                                                                                                                                                                                                                                                 

 introduce the results of the preliminary breath test and the marijuana field test.                                                                                                                                                                                                                                                                                                                                                                                                                                                            

                                               Why we conclude that the admission of the preliminarybreath test evidence                                                                                                                                                                                                                                                                                                                                                                     

                                             and the marijuana field test evidence was harmless in Lewis's case                                                                                                                                                                                                                                                                                                                                                                         

                                                                                          As   we   have just explained,                                                                                                                                                                     the State should not have been allowed to                                                                                                                                                                                                                                               

 introduce evidence that the preliminary breath test showed the presence of alcohol in                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

Lewis's system, or evidence that the marijuana field test result tended to show that the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

vegetable materialin                                                                                                                    Lewis's possession was marijuana.   Nevertheless, we conclude that  

these errors were harmless under the facts of Lewis's case.                                                                                                                                                                                                                                                                                                                                                     

                                                                                          Even without the preliminary breath test evidence, the State had convincing                                                                                                                                                                                                                                                                                                                                                       

proof of Lewis's intoxication:                                                                                                                                                                           Lewis's erratic driving, his visible intoxication when he                                                                                                                                                                                                                                                                                                               

was contacted by the police, and the later result of the DataMaster test administered at                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

the police station, which showed that Lewis's blood alcohollevelwas                                                                                                                                                                                                                                                                                                                                                                                                 .24 percent.   When  

the defense attorney delivered his summation to the jury, he did not argue that the State                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                               -   14 -                                                                                                                                                                                                                                                                                2468

----------------------- Page 15-----------------------

had failed to prove Lewis's intoxication.                                                               Instead, the defense attorney's sole argument                                                

was that the State had failed to prove that Lewis was the driver of the truck.                                                                                                                       

                                  Given these facts, there is no likelihood that the preliminary breath test                                                                                                        

evidence affected the jury's verdict.                                                        10  

                                  We reach the same conclusion with respect to the evidence of the marijuana  


field test. Lewis himself told the officer that the substance was marijuana, and the officer  


corroborated  Lewis's  assertion  both  visually  and  by  smell.                                                                                                  Given  this  record,  we  


conclude that the erroneous admission of the marijuana field test evidence was harmless.  


                  The sufficiency of the evidence that Lewis was the driver of the truck  


                                  Lewis argues on appeal that the evidence at his trial was legally insufficient  


to support the jury's decision that he was the driver of the truck.  Lewis's argument on  


this point is based on construing the evidence in the light most favorable to himself.  But  


when an appellate court reviews the sufficiency of the evidence to  support a criminal  


conviction, the court must view the evidence (and the reasonable inferences to be drawn  


from that evidence) in the light most favorable to upholding the jury's verdict. 11  


                                  When we assess the evidence at Lewis's trial in this light, it is sufficient to  


support the conclusion that he was driving the truck.  



                 See Love v. State                         , 457 P.2d622,634 (Alaska1969) (holding that, for instances of non-                                                                                     

constitutional error, the test for harmlessness is whether the appellate court "can fairly say                                                                                                                       

that the error did not appreciably affect the jury's verdict").                                                          



                 Beck v. State , 408 P.2d 996, 997 (Alaska 1965); Ross v. State , 586 P.2d 616, 618  


(Alaska 1978).  


                                                                                                       -  15 -                                                                                                   2468

----------------------- Page 16-----------------------

                  Lewis's challenge to his sentence                                  

                                    As we noted toward the beginning of this opinion, Lewis was convicted of                                                                                                                     

three offenses: felony driving under the influence, driving with a suspended license, and                                                                                                                                    

sixth-degree controlled substance misconduct (possession of marijuana).                                                                                                                          

                                    Because Lewis was a third                                                   felony offender for presumptive sentencing                                                

purposes, he faced a presumptive range of 3 to 5 years' imprisonment for the felony                                                                                                                                  

               12       And  because  this  was  Lewis's  fifth  DUI  conviction,  he  was  subject  to  a  


mandatory minimum term of 360 days. 13                                                                                In addition,  Lewis faced  a term of up to  



 1 year's imprisonment for driving with a suspended license.  


                                    Thus, for these two driving offenses, Lewis was required to serve at least  


360 days, and he could receive as much as 6 years to serve.  


                                    Lewis received a sentence of 5 years with 1 suspended (4 years to serve)  


for the felony DUI and a consecutive sentence of 90 days to serve for driving with a  


suspended license.  In other words, Lewis received a composite sentence of 4 years and  


3 months to serve for the two driving offenses.  He received an additional30 days for the  


marijuana possession.  


                                    Lewis  contends  that   his   sentence  is  excessive  because  he  has  a  


"demonstrated  and  documented"  potential for  rehabilitation,  and  he  argues  that  the  


sentencing judge failed to give sufficient weight to this potential.  



                  AS 28.35.030(n) (felony DUI is a class C felony); AS 12.55.125(e)(3) (prescribing                                                                                                     

a presumptive range of 3 to 5 years' imprisonment for third felony offenders convicted of a                                                                                                                                         

non-sexual class C felony).                                           


                  AS 28.35.030(n)(1)(C).  



                  AS  28.15.291(a)  (this  offense   is  a  class  A  misdemeanor);  AS  12.55.135(a) 


(prescribing the punishment for class A misdemeanors).  


                                                                                                           -  16 -                                                                                                        2468


----------------------- Page 17-----------------------

                                                            But this was Lewis's fifth conviction for driving under the influence - and                                                                                                                                                                                                                                             

his third felony-level conviction for this offense.                                                                                                                                                                      Lewis also has four prior convictions                                                                                   

for driving with a suspended license.                                                                                                                                  And he has a long history of probation violations                                                                                                                                 

 stemming from these convictions.                                                                                                                         

                                                            Given this criminalhistory,                                                                                           the sentencing judge acted reasonably when she                                                                                                                                                      

decided   to   impose   a   sentence   that   emphasized   the   sentencing goals                                                                                                                                                                                                                                               of   community  

condemnation and isolation.                                                                                                  We conclude that Lewis's composite term of imprisonment                                                                                                                                                    

is not clearly mistaken.                                                                                  15  


                                                            The judgement of the superior court is AFFIRMED.  



                              See McClain v. State                                                                        , 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to                                                                                                                                                                                                   

affirm a sentencing decision unless the decision is clearly mistaken).                                                                                                                                                                                  

                                                                                                                                                                                     -   17 -                                                                                                                                                                                   2468

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