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 authority for any proposition of law.

MEMORANDUM OPINION

Judge HANLEY.

Donald L. Vaughn Jr. was convicted of felony DUI1 and driving with a revoked license.2 He appeals his DUI conviction, contending that the trial court erred in refusing to grant a mistrial after mentioning the felony nature of the charge to the jury during the first stage of his bifurcated DUI trial. He also argues that the trial court erred in concluding that the calibration of the DataMaster used to administer his breath test was properly verified. For the reasons explained here, we reject Vaughn's arguments and affirm his convictions.

The trial court did not abuse its discretion in denying Vaughn's motion for a mistrial after it inadvertently informed the jury that Vaughn's DUI charge was a felony

Vaughn's felony DUI trial was bifurcated, with the jury first having to decide whether Vaughn committed DUI and then, in the second part of the trial, addressing whether Vaughn had prior convictions that would make his DUI a felony under AS 28.35.030(n). During jury selection, the superior court read the charges. However, opening statements and presentation of the evidence did not begin until six days later. After hearing the parties' opening statements, a juror asked the court to re-read the charges. The parties agreed to the re-reading of the charges but asked the judge to remind the jurors that the charges were not evidence. The trial judge told the jurors,

The judge then read to the jury, "Count I, felony DUI. Oh, excuse me. Strike that. On or about June 29, 2011, ...."

Immediately after reading the charges to the jury, the judge instructed the jurors:

Realizing she had erred by informing the jury that Vaughn was charged with a felony-level DUI during the first phase of his bifurcated trial, the trial judge immediately asked the attorneys to approach the bench. The defense requested a mistrial, arguing that the court could not "un-ring the bell." The State argued that a mistrial was not warranted. The trial judge denied Vaughn's request for a mistrial but offered to give a curative instruction, although she acknowledged a curative instruction might highlight the issue even more. The defense agreed that a curative instruction would compound the problem and did not request one. The court proceeded with the trial.

On appeal, Vaughn argues that the trial court abused its discretion by denying his motion for a mistrial. The State concedes that the trial judge erred by informing the jury that Vaughn was charged with a felony DUI during the first phase of the bifurcated trial, but the State argues that the court's instructions to the jury (that the charge was not evidence and that the defendant was presumed innocent) were sufficient to cure the prejudice that arose.

Vaughn's argument rests on the assumption that the jurors knew that DUI is a felony in Alaska only if the defendant has two or more prior convictions within a defined time period.3 Vaughn reasons that if the jurors knew that Vaughn was charged with felony DUI, they would be aware that he had prior convictions for DUI or breath test refusal — information that could be unfairly prejudicial.

As the State acknowledges, it was error for the trial court to inform the jury during the first phase of the bifurcated trial that Vaughn was charged with felony DUI. The question is whether, under the circumstances of this case, this error requires a reversal. The decision of whether the jury's exposure to prejudicial information requires a mistrial is committed to the trial judge's discretion.4 We will reverse the judge's decision only if we are convinced the judge acted unreasonably and abused that discretion.5

Vaughn's trial for felony DUI was bifurcated. As this Court has noted, the purpose of bifurcating a felony DUI trial is not to hide the fact that a defendant is on trial for a felony, but rather to prevent the jury from hearing evidence of his prior convictions for the same crime before deciding whether he committed the current alleged act.6 Inappropriate disclosure of a defendant's prior convictions is reversible error when that information seriously prejudices the jury's consideration of the case.7

But in this case, the jury was only told that Vaughn was charged with a felony DUI. As we have previously observed, "there will be times when, despite the efforts of the judge and the attorneys, one or more trial jurors will deduce that the defendant is on trial for a felony simply from the fact that the trial is taking place in the superior court and the jury consists of twelve members."8 In Vaughn's case, the jury was not directly informed that Vaughn had previously been arrested for, or convicted of, DUI.

Additionally, the jurors were instructed, both before and after the trial judge mentioned the felony nature of Vaughn's charge, that the charging document was not evidence against Vaughn. And, immediately after the court inadvertently informed the jury that Vaughn was charged with felony DUI, the court instructed the jurors that it was the State's burden to present evidence to prove the charges against Vaughn. Next, the court instructed the jury that Vaughn was presumed to be innocent of the charges against him unless the State met its burden of proving him guilty beyond a reasonable doubt.

For these reasons, we conclude that the trial court did not abuse its discretion in denying Vaughn's motion for a mistrial. However, as this issue has now arisen several times in different cases,9 we take the opportunity to caution superior court judges to adopt preventative procedures so they do not inadvertently disclose to juries the felony nature of a defendant's DUI charge during the first stage of a bifurcated trial.

Automatic verification of calibration of the DataMaster

Vaughn raises several arguments based on the premise that the verifications of calibration performed on the DataMaster in his case were invalid because the verifications were performed automatically by the DataMaster itself and not by a person. Vaughn argues that this type of automatic verification violates 13 Alaska Administrative Code (AAC) 63.100(c), which states, in pertinent part, that "[t]he verification of calibration must be performed by the scientific director or by a qualified person designated by the scientific director."

To provide some background for this issue, Alaska law requires the State to regularly verify the calibration of breath test instruments.10 According to a witness from the State Crime Laboratory, the breath test instrument used in the State of Alaska for a number years was the DataMaster CDM. To verify the calibration of the DataMaster CDM, a breath test supervisor would conduct several tests on the instrument and submit a report to the laboratory, where it would be reviewed by the director of the breath test program. But the State started using a new breath test instrument, the DataMaster DMT. These new instruments are programed to automatically run verification testing on a regular basis, and the results are transmitted to the laboratory, where a person reviews the verification results.

Although Vaughn objected to the admission of the verification of calibration reports on the ground that their admission violated his right to cross-examination, he did not object to their admission on the basis that the verification of the DataMaster's calibration did not comply with 13 AAC 63.100(c). Thus, he failed to preserve this issue.

Additionally, the Alaska Supreme Court, in Dennis v. State, Department of Administration, Division of Motor Vehicles,11 recently rejected a claim that the automated verification of calibration procedure does not meet the requirements set out in 13 AAC 63.100(c).

Vaughn argues on appeal that Dennis was wrongly decided and asserts that he will request the supreme court to overturn its decision. But as Vaughn recognizes, this Court has no authority to disturb the supreme court's decision. And Vaughn has not convinced us that his case is distinguishable from Dennis in any meaningful way.

Conclusion

We AFFIRM the judgment of the superior court.