LETA G. ALLEN, Petitioner,
STATE OF ALASKA, Respondent.
Petition for Review from the District Court, Third Judicial District, Kenai, Sharon A. S. Illsley, Judge. Trial Court No. 3KN-11-1250 CR
Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Petitioner.
Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Respondent.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. [*]
The defendant, Leta G. Allen, was brought to trial on a charge of driving under the influence, but the trial ended without a verdict after the trial judge declared a mistrial over the objection of the defense attorney.
The State now intends to try Allen again on the same charge, and Allen has petitioned us to prohibit the second trial. Allen argues that there was no manifest necessity for the mistrial, and thus the double jeopardy clauses of the federal and state constitutions bar any retrial. 
As we explain in this opinion, we conclude that a mistrial was manifestly required. The necessity for a mistrial arose from the fact that, during deliberations, one member of the jury sent a note to the judge asserting that another juror (the foreman) had committed misconduct in two respects. According to the juror's report, (1) the foreman of the jury drove to the section of the highway where the trooper said he observed Allen's impaired driving, for the purpose of personally investigating whether the trooper's description of this area was accurate, and then (2) the foreman reported his findings to the other jurors.
When the trial judge questioned the six jurors about this alleged misconduct, the foreman and three other jurors flatly denied that anything like that had happened. But the other two jurors declared unequivocally that the jury had been informed of the foreman's personal investigation, and that the jurors (as a group) had discussed the foreman's findings.
Given this situation, if the trial was to continue, the trial judge would be required to conduct a further investigation to see who was telling the truth. And during this further investigation, it was inevitable that the six jurors would come to realize that each sub-group of the jury was implicitly accusing the other of lying to the court.
Once the jurors realized this, no reasonable judge could hope to obtain a proper verdict from this jury. Thus, a mistrial was manifestly necessary.
Underlying facts: the basis of the charge against Allen, and Allen's defense to this charge
On the afternoon of July 26, 2011, the state troopers received a report that a woman who appeared to be impaired had just driven away from a local gas station. State Trooper Michael Lorring responded to this report.
The report included a description of the woman's vehicle, and Lorring located this vehicle on the highway. Lorring later testified that, as he followed the vehicle, it was "sway[ing]" or "bouncing" within its lane of travel, and at one point Lorring saw the vehicle leave its lane of travel and cross over the fog line onto the shoulder of the road.
When the driver of this vehicle - Allen - pulled into a parking lot, Lorring contacted her. Lorring observed that Allen had bloodshot, watery eyes, that her speech was slurred, and that she swayed as she stood. And, according to Lorring, Allen told him that she thought he was following her because she had driven over the "lineman".
Despite these signs of impairment, Allen did not smell of alcoholic beverages. When Lorring asked Allen if she was taking any medications, Allen said that she was taking four: Vicodin, Paxil, Trazadone, and Valium.
Lorring administered field sobriety tests to Allen, and the results indicated that Allen was impaired. A subsequent DataMaster test showed that Allen had not consumed any alcohol, but a blood test showed the presence of THC (the active ingredient in marijuana), plus Valium (diazepam) and Trazadone.
Based on all of this, the State charged Allen with driving under the influence. 
At Allen's trial, the State called Trooper Lorring, who testified to the information we have described - including the assertion that Allen had once crossed over the fog line of the highway. But during Lorring's cross-examination by Allen's attorney, Lorring admitted that no fog line was visible in the photographs of the stretch of highway where he purportedly saw Allen cross the fog line.
At the end of the trial, Allen's attorney argued that Allen had not been impaired by her medications, and that Allen's unsteadiness and swaying during the field sobriety tests were the result of back pain. And the defense attorney urged the jurors to reject Trooper Lorring's testimony, specifically reminding them that Lorring had conceded, ...