Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION

COATS, Chief Judge.

John Hutson was charged with felony driving under the influence,1 felony refusal to submit to a chemical test,2 endangering a minor,3 and driving with a suspended license.4 At Hutson's trial, the trial judge allowed the State to introduce evidence that Hutson had been twice previously convicted of driving under the influence, and also once previously convicted of refusing to submit to a breath test. In this appeal, Hutson argues that it was error for the trial judge to allow the jury to hear this evidence at a unitary trial — that the issue of Hutson's prior convictions should have been bifurcated from the other issues in the case, pursuant to this court's decision in Ostlund v. State.5

We conclude that the trial judge abused his discretion when he allowed the jury to hear this evidence at a unitary trial. As we explain more fully in this opinion, the fact that Hutson had prior experience with DUI breath testing had some arguable relevance to the issues of fact litigated at Hutson's trial. But it was both unnecessary and unfairly prejudicial to allow the State to establish this prior experience by introducing evidence of Hutson's previous criminal convictions for driving under the influence and breath test refusal.

Factual and procedural background

In January of 2005, Hutson was stopped for driving under the influence and driving with a revoked or suspended driver's license. Juneau Police Officer Kris Sell took custody of Hutson at the scene and, after Hutson performed poorly on field sobriety tests, Officer Sell arrested Hutson and took him to the police station for a breath test.

The Juneau Police Department had two DataMaster machines (machines that test a person's breath to determine the corresponding percentage of alcohol in their blood). These DataMaster machines were referred to as "D1" and "D2." When Sell and Hutson arrived at the police station, another officer (in Hutson's presence) informed Sell that the police had recently experienced problems with one of the DataMasters.

According to Sell's testimony, the other officer advised her that the problem machine was D1, and that she should use D2 instead. Accordingly, Officer Sell took Hutson to be tested on D2. Sell acknowledged that, during the machine's start-up cycle, it made some "clicks and clacks and a sound of ... air going in and out." According to Sell, these machine noises were a normal part of the machine's self-test to ensure that it was operating correctly.

But when Hutson heard these noises, he told Sell that he didn't like the sound of the machine. He said that he wanted to use the machine in the other room (i.e., D1). Because Sell had been told that D1 was having problems, she refused Hutson's request. Hutson then said that he wanted to take breath tests on both machines. Sell refused this second request as well. She told Hutson that she would not allow him to take two breath tests on different machines — and that if he did not take the test on the machine that was ready to go (i.e., D2), she would charge him with refusing to take the breath test. Sell then read the "implied consent" warning to Hutson — the warning that Hutson was obligated by law to take the breath test, and that refusal to do so was a separate crime. Hutson continued to insist that he wanted to take the breath test on both machines, or at least listen to the other DataMaster to see what it sounded like. Sell then charged Hutson with refusing to submit to the breath test.

(Officer Sell made an audio tape of her interaction with Hutson at the police station. On this audio tape, the conversation between Sell and Hutson is clearly audible, and at least some of the noises made by the DataMaster are also audible. This tape was played for the jury at Hutson's trial.)

The next morning, following Sell's testimony, the State moved to introduce evidence of Hutson's prior convictions for driving under the influence and refusal to take a breath test. The prosecutor told the trial judge that Hutson's prior convictions were relevant because they showed Hutson's "knowledge as to manipulation of the machine," and because they showed that Hutson "knew the consequences of not blowing into the machine." Although the prosecutor's argument on this point is a little hard to follow, it appears that the prosecutor was arguing that Hutson knew he would face another criminal charge if he engaged in outright refusal to take the breath test, and so (according to the prosecutor) Hutson hit upon a subterfuge to avoid taking the breath test without seeming to refuse the test. In other words, the prosecutor asserted that Hutson's prior convictions were relevant to show that, when Hutson expressed doubts about whether the DataMaster was working properly, he was acting dishonestly and his purported doubts were bogus.

The trial judge, Superior Court Judge Larry R. Weeks, granted the State's request to introduce evidence of Hutson's prior convictions. Judge Weeks's ruling on this point was terse, but the judge seemingly adopted the prosecutor's rationale: Judge Weeks declared that the evidence of Hutson's prior convictions was relevant to show Hutson's "state of mind" — apparently on the theory that Hutson's prior experience with breath testing, and with the breath testing apparatus, was relevant to the question of whether Hutson truly believed that the DataMaster's noises were abnormal.

Pursuant to Judge Weeks's ruling, Officer Sell was allowed to testify about Hutson's prior convictions. She testified that Hutson had been convicted of driving while intoxicated in 1999 and again in 2000. She further testified that, following Hutson's arrest in 2000, Hutson had been offered a breath test and had refused.

Later in the trial, after the State rested its case, Hutson took the stand in his own defense. Hutson testified that when the other officer told Sell that one of the DataMasters was not working properly, that officer did not specify which of the two machines was malfunctioning. Hutson further testified that when Sell turned on DataMaster D2 to begin the testing process, the machine "sounded odd" and "didn't sound normal." Hutson said that when he voiced his concerns about the machine, Officer Sell did not say or do anything to reassure him that the machine was working correctly. Instead, she merely continued to insist that Hutson complete the breath test on D2, and she declined to let him take a second breath test on D1.

Why we conclude that the trial judge abused his discretion in allowing the State to introduce evidence of Hutson's previous convictions

In Ostlund v. State,6 we held that when a defendant is charged with felony driving while intoxicated or felony breath test refusal, the trial court should normally bifurcate the defendant's trial, so that the jury decides whether the defendant is guilty of the current offense before it hears evidence of the defendant's prior convictions.

In his concurring opinion in Ostlund, Judge Mannheimer pointed out that bifurcation is required when the defendant's prior convictions have no relevance other than to establish that the defendant is a repeat offender and, thus, that the defendant's current offense is a felony. But there will be times when a defendant's prior convictions for driving under the influence or for breath-test refusal will "be relevant for some valid purpose other than merely to establish the `prior convictions' element of the [felony] offense."7 In such circumstances, the trial judge must balance the relevance of the defendant's past convictions against the "danger that the jurors will view the defendant's past crimes as evidence that the defendant is a person who characteristically engages in this type of criminal behavior — and that the jurors will presume the defendant's guilt from the fact that the defendant has done it before."8

As we have explained, two rationales were offered for the admission of Hutson's prior convictions.

The first theory was that Hutson's prior convictions showed that he "knew the consequences of not blowing into the machine." Under this theory, Hutson's prior experience with the justice system — being prosecuted for DUI and for breath test refusal — was relevant because it showed that Hutson knew he would face a separate criminal charge if he engaged in outright refusal to take the breath test.

This argument may be true as a matter of logic, but evidence of Hutson's prior convictions added nothing of substance to the jury's understanding of this issue. It was undisputed that Officer Sell advised Hutson (as required by Alaska law) that his refusal to submit to the breath test was a separate offense, and that he would be charged with this separate crime if he refused to blow into the DataMaster. Thus, on this issue, evidence of Hutson's prior convictions was wholly cumulative.

The second theory was that Hutson's prior convictions were relevant because they showed that Hutson had prior experience with the breath testing apparatus — prior experience that was relevant to the question of whether Hutson truly believed that the DataMaster was making abnormal noises and malfunctioning.

We agree that Hutson's prior experience with breath testing might be relevant to his knowledge of the normal working (and normal noises) of the DataMaster — assuming that Hutson's prior experience was with the DataMaster rather than with its predecessor device, the Intoximeter. (No one addressed this issue in the trial court.)

But even if we assume that Hutson's prior experience was with the DataMaster, the significant aspect of that prior experience was not that he was convicted of crimes. Rather, it was that he gained familiarity with the working of the testing apparatus.

Hutson's prior convictions for DUI were only circumstantial evidence that Hutson had prior experience with the breath testing apparatus. These convictions only suggested — but did not establish — that Hutson had undergone DataMaster testing in the past. And, of course, evidence that Hutson had twice before been convicted of driving under the influence had a high potential for unfairly prejudicing the jury's decision.

Hutson's prior conviction for breath test refusal had even less probative value. Although Judge Weeks allowed the State to introduce this evidence on the theory that it proved Hutson's prior experience with the breath testing machine, the fact that Hutson had refused to take a breath test in the past actually suggested the opposite conclusion: it suggested that Hutson was not familiar with the normal working of the machine (because he had refused to take the test).

For these reasons, we conclude that it was an abuse of discretion for Judge Weeks to allow the jury to hear about Hutson's prior convictions before the jury decided whether Hutson was guilty of the current offenses (driving under the influence and breath test refusal). Whatever slight relevance this evidence had on the issue of Hutson's familiarity with the working of the DataMaster (or on the issue of Hutson's motivation to fabricate excuses not to take the breath test) was outweighed by the danger that the jury would use the evidence of Hutson's prior convictions "as evidence that [he was] a person who characteristically engages in this type of criminal behavior — and that the jurors [would] presume the defendant's guilt from the fact that the defendant has done it before."9

Conclusion

We conclude that the error in admitting evidence of Hutson's prior convictions had no effect on Hutson's conviction for driving with a suspended license. That conviction is AFFIRMED. However, with respect to Hutson's three other convictions — his convictions for felony driving under the influence, felony refusal to submit to a chemical test, and endangering a minor — the judgment of the superior court is REVERSED.