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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


GEORGE W. LEWIS,
                                                      Court of Appeals No. A-11189
                            Appellant,               Trial Court No. 3PA-10-2656 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                   No. 2468 — August 14, 2015


              Appeal from the Superior Court, Third Judicial District, Palmer,
              Vanessa H. White, Judge.

              Appearances: 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. *

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              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
Pharmaceuticals, 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.




                                            –2–                                         2468

       Underlying facts

              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.

                                           –3–                                        2468

              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). 1 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 limine 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] always been addressed ... in every other DUI trial that [he had]
done.”
              After taking a brief recess to consider the matter, the judge agreed that the
State had failed to establish that the preliminary breath test device met the Daubert-Coon


   1
       AS 28.35.030(n), AS 28.15.291(a)(1), and AS 11.71.060(a)(2), respectively.
                                           –4–                                         2468

standard — if the test result was offered to prove that there was a specific amount of
alcohol in a person’s system. However, the judge declared, without any supporting
evidence or supporting legal authority, that the preliminary breath test device “meets the
... Daubert-Coon standard” when the test result is merely offered to prove “the existence
of alcohol” in a person’s system.
              The judge also ruled (in the alternative) that Lewis’s motion to prohibit the
State from introducing the preliminary breath test evidence was “untimely”. The judge
noted that, earlier, Lewis’s attorney had announced that the defense was ready for trial.
The judge declared that, once the parties announced themselves ready for trial, “the time
for [Daubert-Coon] motions [had] passed.”
              During the State’s case, the prosecutor asked the arresting officer if Lewis
took a preliminary breath test. The officer testified that Lewis submitted to this test, and
that the test result indicated “a presence of alcohol”.
              The prosecutor then asked the arrestingofficer about the officer’s pat-down
search of Lewis’s pockets at the time of the arrest. The officer testified that Lewis told
him that there was “pot” in his pocket — and that, after Lewis said this, the officer pulled
a small baggie from Lewis’s pocket. According to the officer, this baggie contained “a
substance that appeared to be marijuana”.
              The officer explained that, because of his police training and experience,
he was personally familiar with what marijuana looked and smelled like. The officer told
the jury that, when he examined the contents of the baggie from Lewis’s pocket, “that’s
what it looked like to me.” And the officer added that the substance in the baggie
emitted the “very distinctive odor” of marijuana.
              The officer then testified that he performed a chemical field test on the
substance in the baggie, and that this substance “did react”. At this point, Lewis’s



                                           –5–                                         2468

attorney objected (outside the presence of the jury) that there had been no showing that
this marijuana field test was scientifically reliable under the Daubert-Coon standard.
              The prosecutor conceded that evidence of the field test result was
“scientific” evidence for purposes of the Daubert-Coon rule. But instead of offering a
Daubert-Coon foundation for this evidence, the prosecutor suggested that the problem
could be solved by giving the jury a limiting instruction — an instruction that the field
test result, “in and of itself”, was not sufficient to prove the State’s case with regard to
the charge of marijuana possession.
              Again, the trial judge ruled that the defense attorney’s Daubert-Coon
objection was not timely. Nevertheless, the trial judge allowed the prosecutor to conduct
a voir dire examination of the arresting officer to see whether the marijuana field test met
the Daubert-Coon standard for scientific validity.
              During this voir dire testimony, the police officer explained how the field
test worked. He told the court that the testing device was a “small packet” that had
“some chemicalin it”. A person conducting the test “take[s] a small part of the substance
[to be tested]” and puts it in the small packet. Then, according to the officer, “there’s
three different glass, little amulets [sic: ampules] in there, and you break [them] in a
sequence, and [you] agitate the substance. [And] if it turns a particular color and then
separates, [that is] a presumptive positive test for the presence of THC” (the active
ingredient in marijuana). 2

   2
       More specifically, the officer described the testing procedure as follows:

               Officer: It’s very simple. ... It’s three steps, [and] it’s got the instructions
       right on the — every little packet you use. [You] put the substance in; you break
       the first [ampule], [you] agitate it for about 30 seconds, [then] break the second
       [ampule], [and] if you see a color change, then you break the third [ampule], and
       then if you see a separation of the color, then that’s considered a positive test, a
       ... presumptively positive test [for marijuana].

                                              –6–                                            2468

              The officer added that he had used this field test “hundreds upon hundreds
of times”, and that this field test had been used in law enforcement for close to twenty
years.
              After the officer gave this testimony, the trial judge asked the defense
attorney if he continued to object to the testimony on Daubert-Coon grounds. The
defense attorney said that he did. The judge then suggested that the problem could be
solved by telling the jury that the field test result only created a “presumption” that the
substance was marijuana — that it was not conclusive proof. The defense attorney
continued to object to the evidence.
              When the judge called upon the prosecutor to respond to the defense
attorney’s renewed objection, the prosecutor argued that the State was not required to
affirmatively establish a Daubert-Coon foundation for the marijuana field test. Rather
(the prosecutor argued), it was the defense attorney’s burden to provide the court with
some good reason to believe that the challenged evidence might not meet the Daubert-
Coon standard.
              The prosecutor was unable to supply a court decision to support this legal
contention, but he told the trial judge that “it’s understood that there has to be some
showing that there’s [a Daubert-Coon] issue.”
              The prosecutor also agreed with the trial judge’s suggestion that any
Daubert-Coon problem could be solved by telling the jury, “This is just a field test. It
is not conclusive. ... It’s a presumptive field test — and you are not to presume, from
that test alone, that the substance is indeed marijuana. But you can consider it with any
other evidence [presented].”
              After hearing the arguments of counsel, the judge took a recess to re-read
the Coon decision. When the court went back on record, the judge declared that the



                                           –7–                                        2468

marijuana field test evidence would be admitted because Lewis had waived any Daubert-
Coon objection:

                      The Court: The Daubert-Coon analysis requires notice
              and a full-blown eviden[tiary] hearing in order for the Court
              to engage in what is a fairly meticulous analysis. ... For that
              reason, motions under Daubert and Coon need to be brought
              pre-trial, so that that analysis can be undertaken in a
              reasonable and prudent fashion. I find that [this] issue has
              been waived. ... [T]he defendant did not bring a timely
              motion for a Daubert-Coon hearing.

In other words, the judge admitted the marijuana field test evidence even though there
was nothing in the record to establish the scientific validity of the State’s field test under
the Daubert-Coon standard.
              The judge then stated that she would employ Evidence Rule 403 to mitigate
the consequences of her ruling:

                      The Court: I still need to evaluate ... whether ... the
              field test results ... are more prejudicial than probative. And
              my finding is that ... the [test] results are relevant; they’re
              germane to the issue of whether or not ... Mr. Lewis
              possessed marijuana. The possible prejudice is that the test
              is not a conclusive test, but merely an initial field test of the
              substance.

                      [I conclude that this] prejudice is successfully
              addressed by a limiting instruction that indicates that this is
              a field test only, [and that] it does not conclusively establish
              that the substance being tested is marijuana. It merely
              provides some evidence ... that the substance is [or] could be
              marijuana — and that that evidence, standing alone, does not
              meet the State’s burden of proof as to possession. ... [T]hat’s
              the instruction I intend to give. And so I will admit the
              [marijuana field test] evidence with that limiting instruction.

                                            –8–                                          2468

               Following this ruling, the officer testified (in the jury’s presence) that he
took the substance from Lewis’s pocket and tested it by putting it into a container “that
has some chemicals in it.” The officer put the substance into the container, added the
chemicals “in a certain sequence”, and then watched to see whether there was a change
of color, followed by a color separation. The officer testified that he observed these
reactions — indicating that the substance was marijuana.


       Why the superior court’s rulings were wrong


               When a litigant wishes to offer data or results derived from a scientific test
or a scientific analysis, “it is a prerequisite that the scientific test or analysis meet the test
for admissibility under Daubert and Coon.” Guerre-Chaley v. State, 88 P.3d 539, 544
(Alaska App. 2004).
               Moreover, when a party raises a Daubert-Coon objection to evidence that
qualifies as “scientific”, the burden of establishing the required foundation for that
evidence falls on the proponent of the evidence. It is the proponent’s task to establish
the scientific validity of the analysis and/or the procedures that yielded this evidence.
Guerre-Chaley, 88 P.3d at 544. 3 A court is not allowed to simply assume that the
evidence is scientifically valid in the absence of evidence to the contrary.


   3
        See also Burnett v. State, 815 N.E.2d 201, 209 (Ind. App. 2004); Gilbert v.
DaimlerChrysler Corp., 685 N.W.2d 391, 408 (Mich. 2004); State v. Casillas, 782 N.W.2d
882, 836-37 (Neb. 2010); Harris v. State, 424 S.W.3d 599, 607 (Tex. App. 2013); Jackson
v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000); United States v. Mooney, 315 F.3d 54,
63 (1st Cir. 2002); In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 743-44 (3rd Cir.
1994); Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998); United States v.
Nacchio, 555 F.3d 1234, 1241, 1244 (10th Cir. 2009); United States v. Frazier, 387 F.3d
1244, 1260 (11th Cir. 2004).

                                              –9–                                           2468

              If the scientific validity of a particular type of evidence has already been
resolved in prior litigation, the proponent of the evidence (and the judge who is asked
to rule on the admissibility of the evidence) can normally rely on that earlier court
decision as establishing the foundation required by Daubert and Coon. See Samaniego
v. City of Kodiak, 80 P.3d 216, 220 (Alaska 2003). 4 In such instances, the trial court
need not hold a Daubert-Coon hearing, and the court may admit the evidence based on
the earlier judicial determination that the evidence is scientifically valid — unless the
opponent of the evidence provides a good reason to re-examine the earlier court
decision. 5 If the opponent of the evidence does offer good reason to doubt the
continuing validity of the prior court decision, then the burden once again falls upon the
proponent of the evidence to establish its scientific validity under Daubert and Coon. 6
              In Lewis’s case, the State relied on two pieces of evidence that are
unquestionably “scientific” evidence for Daubert-Coon purposes. Both the preliminary
breath test device and the marijuana field test kit are classic examples of testing devices
that yield results that can not be meaningfully explained or cross-examined without a
scientific foundation.
              In the case of the preliminary breath test, a person blows into the testing
device, and the device responds with a displayed number. At Lewis’s trial, the State
asserted that this displayed number will either prove or disprove the presence of alcohol
in the tested person’s blood. But under the Daubert-Coon rule, the trial court was not
supposed to let the State make this assertion to the jury unless and until the State



   4
       See also Johnson v. Commonwealth, 12 S.W.3d 258, 262 (Ky. 1999); Hernandez v.
State, 116 S.W.3d 26, 31 n. 11 (Tex. Crim. App. 2003) (en banc).
   5
       See Johnson v. Commonwealth, 12 S.W.3d 258, 262 (Ky. 1999).
   6
       Johnson, 12 S.W.3d at 262; Samaniego, 80 P.3d at 220.
                                          – 10 –                                      2468

demonstrated the scientific validity of the principles underlying the design and operation
of the testing device.
               In Lewis’s case, the State presented no evidence concerning the scientific
principles underlying the design and operation of the preliminary breath testing device.
The prosecutor simply asserted that it was “standard” for courts to admit this evidence.
Despite the lack of any foundational evidence, and despite the lack of any prior court
decision establishing the scientific validity of the preliminary breath testing device,
Lewis’s trial judge found that this device was a scientifically valid method of
determining the presence of alcohol in a person’s system. This was error.
               The same thing is true of the marijuana field testing kit. According to the
police officer’s voir dire testimony, this testing kit consists of a small container with
three ampules of unidentified liquid chemicals. The tester places a substance into the
container and then breaks the ampules one by one, looking first for a change of color and
then for a separation of color. According to the officer, these two observations — the
color change, followed by the color separation — constitute evidence that the tested
substance is marijuana. Again, under the Daubert-Coon rule, the trial court was not
supposed to let the State make this assertion to the jury unless and until the State
demonstrated the scientific validity of the principles underlying the design and operation
of the testing kit.
               It may be true, as the officer testified, that he had personally used the
marijuana testingkit “hundreds upon hundreds” of times, and it may also be true that this
testing kit is used frequently by law enforcement agencies. But the fact that this testing
device might be commonly used by police officers in the field does not exempt the State
from establishing the scientific validity of the test under Daubert and Coon. As the
Minnesota Court of Appeals has remarked, “lengthy use of a method by law
enforcement, and even lengthy unquestioningacceptance by [the] courts, does not [itself]


                                          – 11 –                                     2468

exempt [scientific] evidence from scrutiny [under the Daubert test].” State v. Dixon, 822
N.W.2d 664, 671-72 (Minn. App. 2012). 7
              As we explained earlier, Lewis’s trial judge ruled that the State was not
required to establish the scientific validity of the marijuana field test because Lewis had
waived any Daubert-Coon objection to this evidence — by failing to object to the
evidence before trial. This, too, was error.
              This Court’s only prior statement on this issue is contained in an
unpublished decision, Trout-Clark v. State, 1993 WL 13157037 (Alaska App. 1993).
Trout-Clark involved the State’s attempt to introduce evidence of a drunk-driving
defendant’s performance on a horizontal gaze nystagmus (HGN) field test. On appeal,
the State suggested that it should have been excused from establishing the scientific
foundation of the HGN test because the defendant “waited until the trial was beginning
... before moving to exclude the HGN test”. 8 We rejected the State’s contention:

              While it is true that suppression motions must normally be
              filed before trial(see CriminalRule 12(b)(3)), [the defendant]
              was not seeking “suppression” of the HGN test. ... Rather,
              [the defendant] argued that the HGN evidence should be
              excluded because the State failed to establish the foundational
              facts required to secure its admission [as scientific evidence].
              A “lack of foundation” objection to proffered evidence need
              not be made before trial.

Id., 1993 WL 13157037 at *3.




   7
       Quoting State v. Hull, 788 N.W.2d 91, 103 n. 3 (Minn. 2010).
   8
       Id. at *3.
                                          – 12 –                                      2468

              Other courts agree that, absent a court order or the parties’ agreement that
a Daubert issue should be litigated before trial, a Daubert objection to scientific evidence
is timely if it is made at trial when the evidence is offered. 9
              It is true, as Lewis’s trial judge remarked, that it is generally better to
conduct Daubert-Coon litigation before the trial begins — because the assessment of
scientific validity under the Daubert-Coon test generally requires an evidentiary hearing,
the testimony of expert witnesses, and a “fairly meticulous analysis”. But when Lewis’s
attorney raised the Daubert-Coon issue after Lewis’s trial began, the trial judge chose
an improper solution to the procedural difficulty: the judge precluded Lewis from
objecting to the State’s scientific evidence — thus effectively allowing the State to
introduce its evidence without having to establish the scientific validity of the evidence
under the Daubert-Coon test.
              As this Court explained in Guerre-Chalet, 88 P.3d at 544, if evidence
constitutes “scientific” evidence for purposes of the Daubert-Coon rule, and if the
method by which this evidence was derived has no scientific validity, then the evidence
is essentially irrelevant. At the same time, such evidence presents the danger that the
verdict will be influenced by assertions “that [have] no basis in science” but are
nevertheless cloaked with an “aura of scientific respectability”. Ibid.
              In Lewis’s case, the defense attorney raised proper objections to both the
preliminary breath test and the marijuana field test, and there was no prior court decision
establishing the scientific validity of either test. Accordingly, the trial judge should have




   9
       See Love v.Commonwealth,55 S.W.3d816,822 (Ky.2001);Commonwealth v. Daye,
587 N.E.2d 194, 207 (Mass. 1992); State v. Moore, unpublished, 647 N.W.2d 706 (Table)
(N.D. 2002), 2002 WL 1472300 at *1; State v. Humberto, 963 N.E.2d 162, 171 (Ohio App.
2011); Davis v. State, unpublished, 2004 WL 1404004 at *6 (Tex. App. 2004).

                                           – 13 –                                       2468

precluded the prosecutor from introducing the challenged evidence unless the State
(as the proponent of the evidence) affirmatively established its scientific validity.
              The State needed expert testimony to establish the required foundations for
these two tests under Daubert-Coon. But the State did not give pre-trial notice of any
expert witnesses on these subjects. Thus, if either party was at fault for forcing the judge
to hold a mid-trial Daubert-Coon hearing, it was the State.
              The trial judge’s approach to this problem — prohibiting the opponent of
the scientific evidence from challenging it, and allowing the proponent of the scientific
evidence to introduce the evidence without establishing a scientific foundation for it —
would actually reward lawyers who act in ignorance of (or worse, in conscious disregard
of) the requirements of the Daubert-Coon rule.
              For these reasons, the trial judge committed error by allowing the State to
introduce the results of the preliminary breath test and the marijuana field test.


       Why we conclude that the admission of the preliminarybreath test evidence
       and the marijuana field test evidence was harmless in Lewis’s case


              As we have just explained, the State should not have been allowed to
introduce evidence that the preliminary breath test showed the presence of alcohol in
Lewis’s system, or evidence that the marijuana field test result tended to show that the
vegetable materialin Lewis’s possession was marijuana. Nevertheless, we conclude that
these errors were harmless under the facts of Lewis’s case.
              Even without the preliminary breath test evidence, the State had convincing
proof of Lewis’s intoxication: Lewis’s erratic driving, his visible intoxication when he
was contacted by the police, and the later result of the DataMaster test administered at
the police station, which showed that Lewis’s blood alcohollevelwas .24 percent. When
the defense attorney delivered his summation to the jury, he did not argue that the State

                                          – 14 –                                        2468

had failed to prove Lewis’s intoxication. Instead, the defense attorney’s sole argument
was that the State had failed to prove that Lewis was the driver of the truck.
              Given these facts, there is no likelihood that the preliminary breath test
evidence affected the jury’s verdict. 10
              We reach the same conclusion with respect to the evidence of the marijuana
field test. Lewis himself told the officer that the substance was marijuana, and the officer
corroborated Lewis’s assertion both visually and by smell. Given this record, we
conclude that the erroneous admission of the marijuana field test evidence was harmless.


        The sufficiency of the evidence that Lewis was the driver of the truck


              Lewis argues on appeal that the evidence at his trial was legally insufficient
to support the jury’s decision that he was the driver of the truck. Lewis’s argument on
this point is based on construing the evidence in the light most favorable to himself. But
when an appellate court reviews the sufficiency of the evidence to support a criminal
conviction, the court must view the evidence (and the reasonable inferences to be drawn
from that evidence) in the light most favorable to upholding the jury’s verdict. 11
              When we assess the evidence at Lewis’s trial in this light, it is sufficient to
support the conclusion that he was driving the truck.




   10
        See Love v. State, 457 P.2d622,634 (Alaska1969) (holding that, for instances of non-
constitutional error, the test for harmlessness is whether the appellate court “can fairly say
that the error did not appreciably affect the jury’s verdict”).
   11
       Beck v. State, 408 P.2d 996, 997 (Alaska 1965); Ross v. State, 586 P.2d 616, 618
(Alaska 1978).

                                           – 15 –                                       2468

        Lewis’s challenge to his sentence


              As we noted toward the beginning of this opinion, Lewis was convicted of
three offenses: felony driving under the influence, driving with a suspended license, and
sixth-degree controlled substance misconduct (possession of marijuana).
              Because Lewis was a third felony offender for presumptive sentencing
purposes, he faced a presumptive range of 3 to 5 years’ imprisonment for the felony
DUI. 12 And because this was Lewis’s fifth DUI conviction, he was subject to a
mandatory minimum term of 360 days. 13 In addition, Lewis faced a term of up to
1 year’s imprisonment for driving with a suspended license. 14
              Thus, for these two driving offenses, Lewis was required to serve at least
360 days, and he could receive as much as 6 years to serve.
              Lewis received a sentence of 5 years with 1 suspended (4 years to serve)
for the felony DUI and a consecutive sentence of 90 days to serve for driving with a
suspended license. In other words, Lewis received a composite sentence of 4 years and
3 months to serve for the two driving offenses. He received an additional30 days for the
marijuana possession.
              Lewis contends that his sentence is excessive because he has a
“demonstrated and documented” potential for rehabilitation, and he argues that the
sentencing judge failed to give sufficient weight to this potential.



   12
       AS 28.35.030(n) (felony DUI is a class C felony); AS 12.55.125(e)(3) (prescribing
a presumptive range of 3 to 5 years’ imprisonment for third felony offenders convicted of a
non-sexual class C felony).
   13
        AS 28.35.030(n)(1)(C).
   14
       AS 28.15.291(a) (this offense is a class A misdemeanor); AS 12.55.135(a)
(prescribing the punishment for class A misdemeanors).

                                           – 16 –                                    2468

              But this was Lewis’s fifth conviction for driving under the influence — and
his third felony-level conviction for this offense. Lewis also has four prior convictions
for driving with a suspended license. And he has a long history of probation violations
stemming from these convictions.
              Given this criminalhistory, the sentencing judge acted reasonably when she
decided to impose a sentence that emphasized the sentencing goals of community
condemnation and isolation. We conclude that Lewis’s composite term of imprisonment
is not clearly mistaken. 15


        Conclusion


              The judgement of the superior court is AFFIRMED.




   15
       See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to
affirm a sentencing decision unless the decision is clearly mistaken).

                                         – 17 –                                     2468

