GEORGE W. LEWIS, Appellant,
STATE OF ALASKA, Appellee.
Appeal from the Superior Court, Third Judicial District No. 3PA-10-2656 CR, Palmer, Vanessa H. White, Judge.
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. [*]
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 Pharmaceuti cals, 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 Daubert-Coon.
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.
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.
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 (possession of marijuana).  He was convicted of all three offenses following a jury trial.
The superior court's Daubert-Coon rulings
On the morning that Lewis's trial began, Lewis's attorney filed a motion in limi ne 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] ...