Judge SUDDOCK.

NOTICE 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. Trial Court Nos. 3AN-10-681 CR & 3AN-10-12963 CR

MEMORANDUM OPINION

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, and Gregory Miller, Judges. Appearances: Colleen A. Libbey, Libbey Law Offices, LLC, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.

Gary Lee Baker was convicted of felony driving under the influence, driving while license suspended, and violating his conditions of release in a felony case. Baker appeals his DUI conviction, arguing that the superior court should have suppressed his blood-test result, granted him a Daubert hearing, and upheld a discovery request. For the reasons expressed below, we find no merit in these arguments.

In an unrelated case consolidated for sentencing, Baker pled guilty to second-degree escape and to making a false statement. Baker claims that the superior court should have adopted his proposed mitigator—that he committed the escape under some degree of duress or compulsion. We uphold the superior court's conclusion that Baker failed to prove the mitigator.

Background facts relating to the DUI proceeding

At approximately 3 a.m. on January 19, 2010, Anchorage Police Officer Steve Dunn saw Baker driving without a seatbelt. Officer Dunn followed Baker and observed his car drift to the left. When the officer turned on his flashing lights, Baker did not immediately react. The officer shined his spotlight into Baker's car and activated his siren. Baker then pulled into a nearby parking lot.

Upon contacting Baker, Officer Dunn observed that Baker's eyes were bloodshot and watery, and he smelled a slight odor of alcohol. During most of the contact that followed, Baker did not make eye contact with Officer Dunn. Baker admitted that his driver's license was suspended for a prior DUI conviction, and he admitted to consuming a couple of beers.

Baker performed poorly on three field sobriety tests. He showed six of six signs of nystagmus, a physical indicator of alcohol or other depressants. He exhibited three of eight clues of impairment on the walk-and-turn test before he gave up and stopped trying. And he demonstrated three of four clues of impairment on the one-leg-stand test.

Officer Dunn arrested Baker and transported him to the Anchorage jail for processing and a breath test. Baker fell asleep during the ride to the jail. Baker again fell asleep during the fifteen-minute observation period before the breath test, and he fell asleep a third time after he made a phone call.

Baker's breath test showed a blood-alcohol level of only .014 percent, a result that Officer Dunn considered inconsistent with Baker's symptoms of impairment. The officer performed the horizontal gaze nystagmus test a second time and again observed all six possible clues. He then asked Baker to consent to a blood test and to a drug recognition exam, but Baker refused both.

Officer Dunn related his observations and the breath-test result to a magistrate, who issued a search warrant for Baker's blood. A blood sample was sent to the Washington State Patrol's toxicology laboratory, where testing performed by forensic toxicologist Brian Capron revealed cocaine (a central nervous stimulant), benzoylecgonine (a cocaine metabolite), and an unquantifiable level of methamphetamine.

At the time of the DUI stop, Baker was on release in a pending felony case with a bail condition requiring him to obey all laws.

A jury convicted Baker of felony DUI and driving with a suspended license. And he pled no contest to violating his conditions of release in a felony case. This appeal followed.

Baker's suppression argument based on the significance of the field sobriety test results

Baker asked the superior court to suppress his blood-test results. One of Baker's claims, which he renews on appeal, was that the officer made a material misrepresentation in his search warrant application when he testified that Baker's poor performance on the field sobriety tests, coupled with Baker's negligible blood-alcohol level, indicated that Baker was impaired by a substance other than alcohol. Baker contends that this testimony was materially misleading because (according to Baker) field sobriety tests can only predict impairment by alcohol, but cannot predict impairment by drugs unless they are administered as part of a twelve-step drug recognition exam — an exam Baker declined to undergo.

Baker largely bases his argument on a passage found in a decision of the New Mexico Court of Appeals, State v. Lasworth. But the passage on which Baker relies does not contain the words of the court, but rather the words of a report commissioned by the National Highway Transportation Safety Administration. This study (part of a series of studies) concludes that a scientifically valid correlation exists between certain field sobriety tests and a blood-alcohol content above .10 percent. The study indicates that no comparably rigorous scientific correlation supports a per se relationship between field sobriety test performance and impaired driving. But it does not follow, nor does the Lasworth court hold, that field sobriety tests are irrelevant to a determination of driving impairment. Indeed, in a later unpublished case, the New Mexico Court of Appeals rejected Baker's proposed interpretation of Lasworth — i.e., Baker's contention that Lasworth held that field sobriety tests are only predictive of blood-alcohol content.

We reject the proposition that field sobriety tests are irrelevant to a determination of impairment under Alaska law. Accordingly, Officer Dunn could properly cite Baker's poor performance on the field sobriety tests as one of the reasons to believe he thought that Baker's blood might contain evidence of controlled substances.

Baker's other suppression arguments

In the search warrant application, Officer Dunn testified that three categories of drugs could cause the nystagmus he observed: central nervous system depressants (e.g., alcohol and Xanax), dissociative anaesthetics (e.g., PCP), and inhalants (e.g., gasoline, glue). But Baker's blood tested positive for central nervous system stimulants (cocaine and methamphetamine) rather than the depressants the officer had predicted in his search warrant application. And Officer Dunn testified at the suppression hearing that stimulants do not cause nystagmus.

Baker argued that Officer Dunn's erroneous prediction as to the class of drugs causing Baker's impairment was a material misstatement and that Officer Dunn's testimony about the meaning of Baker's nystagmus should be stricken from the search warrant application. But at the suppression hearing, Officer Dunn explained that he had failed to consider an alternative explanation for Baker's symptoms: stimulant users experience a "downside" that mimics the symptoms of depressants, including drowsiness and constricted pupils. The superior court found that this explanation "makes abundant sense."

The superior court's finding of good faith on the officer's part is supported by the record. This finding defeats Baker's contention that the nystagmus test result should be stricken from the search warrant application, because only misstatements of fact made intentionally or with reckless disregard for the truth are subject to exclusion.

Baker also argues that the superior court erred in failing to find that Officer Dunn made a different material misstatement in the search warrant application: that he had comprehensively ruled out natural, as opposed to drug-induced, nystagmus. Baker's suppression motion cited a legal treatise listing various natural causes of nystagmus. But at the suppression hearing, Baker presented no evidence on this matter and made no showing whether such natural causation is frequent or rare. The superior court never ruled on this aspect of Baker's suppression motion.

We note that when the magistrate asked whether medical conditions can cause nystagmus, Officer Dunn answered that Baker had denied suffering from natural causes of nystagmus such as diabetes. We find that the officer's failure to supplement this answer with a treatise-quality explanation of all conceivable non-intoxicant causes of nystagmus was not a material misrepresentation.

The superior court did not err when it denied Baker's request for a Daubert hearing on drug recognition exams

A protocol has been developed for testing persons suspected of drug-induced driving impairment. Called the "drug recognition exam," this protocol involves twelve steps, some of which are the field sobriety tests administered by Officer Dunn—the horizontal gaze nystagmus test, the one-leg-stand test, and the walk-and-turn test. This battery of twelve tests purports to indicate the presence of drugs in the subject's body.

A curriculum has been developed to train officers as "drug recognition experts." Both Officer Dunn and Robert Capron, the forensic expert who tested Baker's blood, had completed drug recognition training courses.

Baker moved for a Daubert hearing on the scientific validity of drug recognition exams. But since Baker had refused to undergo such an exam, the superior court ruled that no Daubert hearing was necessary. The court did conditionally grant a second defense Daubert motion, requiring a Daubert hearing before Capron could testify that a specific blood level of a drug proved driving impairment. But Capron testified at trial that such a correlation was scientifically impossible given the multiple variables involved.

Baker stipulated at trial that Officer Dunn was an expert in field sobriety tests. The officer opined that, based on the totality of the circumstances, Baker was impaired by a combination of drugs and alcohol. He drew this conclusion from Baker's delayed response during the traffic stop, his appearance and demeanor, his poor performance on the field sobriety tests, and his drowsiness. The officer's opinion was not based upon the results or scientific merits of a drug recognition exam.

The trial court qualified forensic toxicologist Brian Capron as an expert in the field of controlled substances and toxicology. He testified at trial to his forensic identification of the substances in Baker's blood. Capron's training included extensive observation of individuals, either volunteers or recently arrested prisoners, who had ingested known drugs or drug combinations. Capron testified that he had reviewed video and audio recordings of Baker and, drawing on his experience, he had concluded that Baker behaved like other impaired drivers he had observed.

Like Officer Dunn, Capron did not profess reliance on any aspect of his drug recognition training. Rather, both witnesses testified that they had extensively observed subjects known to have exhibited impaired driving, and that Baker exhibited similar behaviors and poor performance on the field sobriety tests.

Baker's argument to the superior court hinged on attacking the scientific validity of the drug recognition exam. The judge did not err when he ruled that this point was moot because Baker had refused the exam.

On appeal, Baker argues a different ground—that any comparison between Baker and previously observed impaired drivers somehow relies on specialized drug recognition principles and so merits a Daubert hearing. We conclude that Baker has failed to preserve this argument for appeal.

We express no opinion on the scientific validity of the drug recognition exam protocol or any other aspect of drug recognition training.

We uphold the judge's discovery rulings

Baker asked the superior court to order discovery of two-plus years of periodic audits of the Washington forensic crime laboratory that tested his blood. Baker claimed that he had reason to believe that Capron had falsified lab documents. And Baker claimed more generally that the laboratory had failed audits and lost multiple samples.

The superior court invited Baker to substantiate his allegations of lab misconduct with evidence, but he failed to do so. The court then denied Baker's request for the two-plus years of audits and instead ordered the State to produce audit reports applicable to the period immediately before, during, and after the lab tested Baker's blood.

Baker now argues that the superior court erred when it only partially granted his request for audit reports. But he fails to show how this ruling prejudiced him. If Baker had wished to contest the accuracy of the blood-test results, he could have submitted his remaining blood sample for independent testing. On these facts, we find no abuse of discretion by the superior court.

Baker also requested production of training materials from the drug recognition training course. The State opposed this request, noting that since Baker had refused to perform a drug recognition exam, Officer Dunn would not be testifying about the exam. Superior Court Judge Michael Spaan accordingly denied Baker's request.

But at trial before a different judge, Superior Court Judge Gregory Miller, the matter was not quite so clear-cut. Both Officer Dunn and forensic expert Capron testified that they had taken a drug recognition course, and this testimony perhaps bolstered their credibility in the eyes of the jury. But while this turn of events might have caused the judge to reconsider the earlier ruling denying production of the training materials, the defense did not renew its request for production.

And the testimony of Officer Dunn and Capron did not rely on foundational knowledge specific to a drug recognition course. Both witnesses explicitly described their experiences with impaired drivers that enabled them to correlate Baker's demeanor, testing performance, and drowsiness with driving impairment. Neither relied upon scientific methods or expertise.

We conclude that the judge's ruling was not an abuse of discretion.

We affirm the superior court's rejection of the proposed mitigator in Baker's escape case

Baker's separate consolidated sentence appeal arises from a case in which Baker pled guilty to second-degree escape and to making a false statement. Baker had absconded from a halfway house where he was awaiting trial on his current felony DUI. Baker gave a false name when he was arrested at his girlfriend's house about twenty-five days later.

At Baker's sentencing hearing he asked the judge to find that he had escaped "under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected the defendant's conduct." To support this proposed mitigator, Baker provided the obituaries of his mother and sister. His mother had died in Iowa of natural causes twenty-three days after his escape and two days before his arrest for escape. And his sister had died of cancer in Anchorage about three months after his escape.

Baker's attorney told the court that he would present no witnesses in support of the mitigator. During allocution, Baker said that he talked to his sister on the phone while he was in custody at the halfway house and he could hear her getting weaker by the day; Baker claimed that his inability to help her weighed on him and contributed to his decision to abscond from the halfway house.

To establish mitigator (d)(3), Baker had to prove by clear and convincing evidence facts that would "come close" to establishing a necessity or duress defense. The proof had to be "of a sufficiently extraordinary nature that it approaches being a defense to the crime," and not behavior that is "ordinary and expected in the commision of this kind of offense." The superior court found that Baker had failed to prove the mitigator, noting that Baker had not applied for a temporary release on compassionate grounds.

Baker argues on appeal that the superior court erred when it rejected the mitigator. But the court had no basis to grant it: Baker did not testify and he presented no other admissible evidence that his escape bore any relationship to the impending deaths of his mother and sister. Baker's allocution could not serve as evidence because it was not testimony offered under oath.

We uphold the court's rejection of mitigator (d)(3).

Conclusion

We AFFIRM Baker's conviction for felony DUI and the sentence of the superior court in the felony escape and false statement case.