                                                                                FILED 


                                                                        November 7, 2013 


                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 



            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 30933-9-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )
RYAN RICHARD QUAALE,                           )         PUBLISHED OPINION
                                               )
                     Appellant.                )

       SIDDOWAY, A.C.J. -     At issue is whether Ryan Quaale was denied his right to a

fair trial when the State's witness, an arresting trooper, testified to his opinion based on a

horizontal gaze nystagmus (HGN) test performed in the field that there was "no doubt"

Mr. Quaale was impaired from alcohol consumption. Given the type of witness involved,

the nature of the testimony, and the limits that our Supreme Court placed on opinions that

may be expressed from HGN testing in State v. Baity, 140 Wn.2d 1,991 P.2d 1151

(2000), the opinion might well have improperly int1uenced the jury, depriving him of a

fair trial. We reverse and remand for a new trial.

       Mr. Quaale's remaining assignments of error complain of prosecutoriaI

misconduct alleged to have occurred during closing argument. In light of our reversal of

the judgment and sentence, we need not address his arguments that the trial court should
No.30933-9-III
State v. Quaale


have declared a mistrial. With respect to his claim that the alleged misconduct warranted

dismissal of the felony driving under the influence (DUI) charge under CrR 8.3(b), Mr.

Quaale fails to demonstrate that any prejudice cannot be remedied by the new trial.

                    FACTS AND PROCEDURAL BACKGROUND

      Ryan Quaale was charged with attempting to elude a pursuing police vehicle and

felony DUI based on his detention and arrest in August 2011, following a pursuit by

Washington State Patrol Trooper Chris Stone. Trooper Stone had seen Mr. Quaale's

truck speeding in a residential neighborhood in Mead and activated his lights to pull him

over. Mr. Quaale responded by turning off his truck's headlights and accelerating. Even

after overshooting a comer and skidding off the road into a front yard, Mr. Quaale

recovered, returned to the road, and persisted in speeding away. Trooper Stone continued

to pursue, turning on his siren, and after several more blocks, Mr. Quaale stopped his

truck and stepped out.

      Trooper Stone handcuffed Mr. Quaale and, as he did, smelled alcohol. To assess

whether Mr. Quaale was legally impaired, the trooper performed a field sobriety test for

HGN. Nystagmus is the involuntary oscillation of the eyeballs resulting from the body's

attempt to maintain orientation and balance; HGN is an inability to maintain visual

fixation as the eyes tum from side to side. Baity, 140 Wn.2d at 7 n.3. HGN occurs in

persons consuming alcohol. Id. at 12. The only field sobriety test that Trooper Stone

performed on Mr. Quaale was the HGN test. He concluded from the test that Mr. Quaale

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,
    No.30933-9-II1
    State v. Quaale


    was impaired and arrested him. He transported Mr. Quaale to a state patrol office, where

    Mr. Quaale refused to submit to a breath test.

           When Mr. Quaale was first tried on the two charges, the jury found him guilty of

    attempting to elude a police vehicle but was deadlocked on the felony DUI charge. The

    trial court declared a mistrial on the latter count, and it is Mr. Quaale's second trial on

    that count that is the subject of this appeal.

           At the second trial (as in the first) the State relied on the testimony of Trooper

    Stone to establish that Mr. Quaale had been driving while intoxicated and impaired.

    It established that the trooper had been trained as a drug recognition expert (DRE). DREs

    are trained to recognize the behavior and physiological conditions associated with certain

    psychoactive drugs and alcohol and, from that, to form an opinion whether a driver is

    impaired. Id at 4. A full DRE examination of a suspect includes 12 steps, some

    involving observation and others involving questioning and testing. Id at 6. HGN

    testing is one of the 12 steps. See id

           After having Trooper Stone describe the extent of his experience, explain HGN

    and the procedure for testing it, and tell the jury about his administration of the test to Mr.

    Quaale, the prosecutor asked, "In this case, based on the HGN test alone, did you form an

    opinion based on your training and experience as to whether or not Mr. Quaale's ability

    to operate a motor vehicle was impaired?" Report of Proceedings (Apr. 9 & May 17,

    2012) (RP) at 33. Mr. Quaale's lawyer immediately objected that the trooper was being

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No.30933-9-III
State v. Quaale


asked to provide an opinion on the ultimate issue determining guilt. The objection was

overruled. Trooper Stone answered, "Absolutely. There was no doubt he was impaired."

Id.

       A second evidentiary issue relevant to this appeal arose later, during the redirect

examination of Trooper Stone. During cross-examination, Mr. Quaale's lawyer had

asked the trooper whether Mr. Quaale was driving with a suspended license at the time

the trooper stopped and arrested him. She would later explain to the trial court that she

intended to use the fact that Mr. Quaale's license was revoked to argue that her client

attempted to elude the trooper not because he was intoxicated, but out of concern he

would be charged for driving with a suspended license. In response to the question,

Trooper Stone affirmed that Mr. Quaale's license was revoked at the time.

       On redirect, the prosecutor asked Trooper Stone why Mr. Quaale's license had

been revoked, knowing that it was revoked when Mr. Quaale earlier refused to take a

breath test. See former RCW 46.20.308(7) (2008); RCW 46.20.3101 (providing for

suspension, revocation or denial of an arrested person's license to drive in the event of

refusal of a breath test).

       Mr. Quaale's lawyer made a timely objection. Outside the presence of the jury,

she argued that the question was designed to introduce evidence of criminal history that

was not admissible. The prosecutor conceded that "if I had tried to bring it out in my

direct, it absolutely would have been objectionable," but "[c ]ounsel brought it out in her

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No.30933-9-III
State v. Quaale


cross, and the state is entitled to go into it on redirect." RP at 48. The trial court

overruled the defense objection and when the jury returned, Trooper Stone testified that

Mr. Quaale's license had been revoked for a prior refusal to take the breath test.

       Before the parties delivered closing arguments, Mr. Quaale's lawyer raised the

issue of the reason for Mr. Quaale's prior license revocation again, asking for a limiting

order preventing the State from mentioning it during closing. The prosecutor represented

that she would not address it in closing unless there was something in defense counsel's

argument that warranted rebuttal. The trial court ruled, "I am going to permit that

evidence to stand, and it may be responded to in rebuttal." Clerk's Papers (CP) at 147.

Mr. Quaale's lawyer then asked, "So, Your Honor, to clarify, if in closing arguments it is

not discussed by me, is that then limiting the State as well?" Id. The trial court

responded, "Right." Id.

       During closing arguments the defense did not raise Mr. Quaale's license status.

The State raised it in its rebuttal argument, however. Although the trial court granted one

defense objection and told the jury to disregard Ii statement by the prosecutor, it overruled

Mr. Quaale's objection to other statements.

       After the jury was dispatched to deliberate, Mr. Quaale moved for a mistrial

because the State violated the trial court's ruling. The two lawyers disagreed over

whether Mr. Quaale's lawyer had raised her client's revoked license status in her closing

argument. The trial court reserved ruling on the issue until a transcript could be obtained.

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No. 30933-9-111
State v. Quaale


       A transcript of the arguments revealed that Mr. Quaale's lawyer had steered clear

of her client's license status during closing argument. Having established the violation of

the court's ruling, Mr. Quaale then filed a motion to dismiss the felony DUI charge on the

basis of governmental misconduct, relying on CrR 8.3(b). He argued that the court

should dismiss the case because no limiting instruction could have cured what he

characterized as the critical prejudice: namely, that his lawyer had forgone an important

explanation for Mr. Quaale's conduct-his concern about being arrested for a suspended

license-in reliance on the court's ruling.

       Faced with the transcript, the State admitted that the prosecutor had violated the

court's ruling but argued she was justified in raising the revoked license because it was a

fair response to the defense argument that in refusing to submit to a breath test, Mr.

Quaale was exercising a legal right. The trial court denied Mr. Quaale's motion,

reasoning that the tendency of the defense statement was to "advance a rationale for the

decision to refuse the breath test" and "the prosecution is entitled to counter with an

alternative rationale for refusing the breath test." CP at 122. Mr. Quaale appeals.

                                        ANALYSIS

       Mr. Quaale makes four assignments of error: that (1) he was denied a fair trial

when Trooper Stone testified that there was "no doubt" he was impaired, (2)

prosecutorial misconduct denied him a fair trial, (3) cumulative error denied him a fair




                                              6

No. 30933-9-111
State v. Quaale


trial, and (4) the trial court erred in denying his motion to dismiss the prosecution. We

address the opinion testimony and governmental misconduct issues in tum.

        Did Trooper Stone's opinion that Mr. Quaale was "absolutely" impaired
                                 deny him a fair trial?

       Mr. Quaale first argues that Trooper Stone's testimony amounted to an opinion on

guilt and thereby denied him a fair trial. The trial court has wide discretion to determine

the admissibility of evidence, and the trial court's decision whether to admit or exclude

evidence will not be reversed on appeal unless the appellant can establish that the trial

court abused its discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001)

(citing State v. Rivers, 129 Wn.2d 697, 709-10, 921 P.2d 495 (1996)). A trial court

abuses its discretion when its evidentiary ruling is based on untenable grounds or reasons.

State v. Neal, 144 Wn.2d 600,609,30 P.3d 1255 (2001). Where reasonable minds could

take differing views regarding the propriety of the trial court's actions, the trial court has

not abused its discretion. Demery, 144 Wn.2d at 758.

       ER 701 permits testimony in the form of opinions or inferences that are "rationally

based on the perception of the witness" and "helpful to a clear understanding of the

witness' testimony or the determination of a fact in issue." ER 704 provides that

"[t]estimony in the form of an opinion or inferences otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier of fact."

Notwithstanding ER 704, however, "[n]o witness, lay or expert, may testify to his


                                               7

No.30933·9-III
State v. Quaale


opinion as to the guilt of a defendant, whether by direct statement or inference." State v.

Black, 109 Wn.2d 336,348, 745 P.2d 12 (1987). Impermissible opinion testimony

regarding the defendanf s guilt may be reversible error because such evidence violates the

defendanfs constitutional right to a jury trial, which includes the independent

determination of the facts by the jury. State v. Kirkman, 159 Wn.2d 918,927,155 P.3d

125 (2007). On the other hand, "testimony that is not a direct comment on the

defendanfs guilt ... , is otherwise helpful to the jury, and is based on inferences from the

evidence is not improper opinion testimony." City ofSeattle v. Heatley, 70 Wn. App.

573, 578, 854 P.2d 658 (1993).

       Even where expert testimony is helpful to the jury, "[i]t is unnecessary for a

witness to express belief that certain facts or findings lead to a conclusion of guilt." State

v. Montgomery, 163 Wn.2d 577, 592, 183 P.3d 267 (2008). "[O]pinion testimony should

be avoided if the information can be presented in such a way that the jury can draw its

own conclusions." Id. at 591 (citing FED. R. EVID. 702 advisory committee notes). In

Montgomery, our Supreme Court explained that "[t]o avoid inviting witnesses to express

their personal beliefs, one permissible and perhaps preferred way is for trial counsel to

phrase the question 'is it consistent with' instead of' do you believe.'" Id. at 592.

       Washington decisions have previously addressed whether HGN testing and the

other 11 steps of a DRE evaluation are scientific, and whether they meet the requirements

of Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923) for novel scientific

                                              8

No. 30933-9-111
State v. Quaale


evidence. In Baity, 140 Wn.2d at 14, the Supreme Court held that although not all

components ofDRE testing are scientific in nature, HGN testing is. It also concluded

that HGN testing is generally accepted in relevant scientific communities as a means of

indicating the ingestion of certain drugs or alcohol. Because the conclusions to be drawn

from HGN testing are indefinite as to the amount of consumption or impairment,

however, the court explicitly limited the type of opinion that may be offered from HGN

testing. Baity involved challenges to HGN testing for impairment from drug use rather

than alcohol, but its discussion of limitations on the type of opinion that may be offered

have equal application where a DUI charge is based on impairment from alcohol

consumption.

       The court held in Baity that even where an officer has fully evaluated a driver

using all 12 steps of DRE,

       an officer may not testify in a fashion that casts an aura of scientific
       certainty to the testimony. The officer also may not predict the specific
       level of drugs present in a suspect. The DRE officer, properly qualified,
       may express an opinion that a suspect's behavior and physical attributes
       are or are not consistent with the behavioral and physical signs associated
       with certain categories ofdrugs.

1d. at 17-18 (emphasis added).

       These limitations find support in later decisions by other courts, evaluating even

more recent studies and scientific opinion. The most recent Frye hearing on the

admissibility of such evidence that we encountered in our review was ordered by the


                                             9

No. 30933-9-111
State v. Quaale


Illinois Supreme Court in 2007. In that Frye hearing conducted in 2007 and 2008 (the

Frye hearing reviewed in Baity appears to have taken place in 1998) it was concluded

that testimony regarding HGN testing results "'should be limited to the conclusion that a

"failed" test suggests that the subject may have consumed alcohol and may [have] belen]

under the influence. There should be no attempt to correlate the test results with any

particular blood-alcohol level or range or level of intoxication.'" People v. McKown, 236

Il1.2d 278,293,924 N.E.2d 941 (2010) (alterations in original). The Illinois Supreme

Court affirmed that limitation in 2010, explaining that "[a] failed HGN test is relevant to

impairment in the same manner as the smell of alcohol on the subject's breath or the

presence of empty or partially empty liquor containers in his car"-each fact is evidence

of alcohol consumption and is relevant and admissible for that reason. Id. at 302-03.

       Division Two of this court was called upon to apply the limits on opinion evidence

imposed by Baity in State v. Koch, 126 Wn. App. 589, 103 P.3d 1280 (2005). In that

case, the trial court had ruled in response to a motion in limine-"correctly," according to

Division Two-that the State's experts "may testify that an HGN test can show the

presence of alcohol but not the specific levels of intoxicants." Id. at 597. An arresting

officer called by the State abided by the order, testifying that "when he detects HGN, it

tells him '[t]hat there is a chance that there is alcohol in the person's system.'" Id. at 593

(alteration in original). But when the prosecutor asked the State's toxicologist about the




                                              10 

No. 30933-9-111
State v. Quaale


reliability ofthe HGN test, the toxicologist testified that it was '''like 91 or 92 percent

reliable'" at a .08 leveL Id.

        Division Two found that the admission of the toxicologist's report was error and

that it had not been waived. But it concluded that the error was harmless because the

result of the defendant's breath test (a blood alcohol content of .147 and .141) had also

been admitted into evidence, and properly so. In light of the blood test results, the

defendant could not show that the toxicologist's testimony about the reliability of the

HGN test so prejudiced him as to require a new triaL

        We tum, then, to the admission of Trooper Stone's opinion testimony in this case.

To determine the admissibility of challenged opinion testimony, Washington courts

consider the circumstances of the case, including the following five factors: '''(1) the type

of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges,

(4) the type of defense, and (5) the other evidence before the trier of fact. '" Montgomery,

163 Wn.2d at 591 (internal quotation marks omitted) (quoting Demery, 144 Wn.2d at

759).

        In Montgomery, the Supreme Court analyzed how several of the five factors are

weighed in the context of an arresting officer providing testimony that is arguably an

opinion on guilt, direct or by inference. As to the "type of witness involved," the court

reiterated the well-recognized fact that police officers' testimony "carries an 'aura of

reliability'" yet at the same time, their opinions on guilt "have low probative value." 163

                                              11 

No. 30933-9-II1
State v. Quaale


Wn.2d at 595 (quoting Demery, 144 Wn.2d at 765). Police officers' area of expertise "is

in determining when an arrest is justified, not in determining when there is guilt beyond a

reasonable doubt." Id. (citing Deon J. Nossel, Note, The Admissibility of Ultimate Issue

Expert Testimony by Law Enforcement Officers in Criminal Trials, 93 COLUM. L. REv.

231,244 n.70 (1993)). This factor, then, weighed against the admissibility of Trooper

Stone's opinion.

       As to the specific nature of the testimony, the prosecutor did not merely ask

whether Mr. Quaale displayed HGN consistent with the consumption of alcohol; she

asked the trooper directly for his opinion whether Mr. Quaale's ability to operate a motor

vehicle was impaired. This was equivalent to framing questions and receiving answers in

the form of personal belief, which was criticized in Montgomery. See id. at 594 (stating it

was "very troubling that the testimony in this case was quite direct and used explicit

expressions of personal belief'). Moreover, the trooper's testimony that he had

"absolutely" formed an opinion that there was "no doubf' Mr. Quaale was impaired

overstated the exactness ofHGN testing in respects explicitly forbidden by Baity.

       The State protests that the Baity limitations were not violated because the trooper

did not testify to blood alcohol content in numeric terms. But testimony need not be

numeric to violate Baity. To say the HGN test establishes "no doubt" of impairment casts

an aura of scientific certainty that the level of drugs was sufficient to impair. This second

factor, then, strongly weighed against the admissibility of the trooper's opinion.

                                             12 

No. 30933-9-111
State v. Quaale


       As to the nature of the charge and the type of defense, the core issue and only

disputed element of the felony DUI charge was whether Mr. Quaale was impaired. The

jury was instructed that to convict Mr. Quaale of felony DUI, it was necessary for the

State to prove, among other required elements, that in driving his truck at the time he was

stopped by the trooper, Mr. Quaale had been "under the influence ofor affected by

intoxicating liquor." CP at 91 (Instruction 4). It was instructed that "[a] person is under

the influence of or affected by the use of intoxicating liquor if the person's ability to

drive a motor vehicle is lessened in any appreciable degree." Id. at 92 (Instruction 5).

The trooper was asked, again, whether he formed an opinion "whether or not Mr.

Quaale's ability to operate a motor vehicle was impaired," to which the trooper

responded, "There was no doubt he was impaired." While not a direct opinion on guilt, it

was an opinion on an ultimate issue and sufficiently equivalent to the key element in

dispute to create a concern, in light of the other factors, that the jury would be unduly

influenced by the testimony. Cf Black, 109 Wn.2d at 349 (rape counselor's testimony

that in her opinion, there was a specific rape trauma profile for rape victims and the

alleged victim fit it "constitutes, in essence, a statement that the defendant is guilty of the

crime of rape"); State v. Alexander, 64 Wn. App. 147,154,822 P.2d 1250 (1992) (expert

stating beliefthat child was not lying about sexual abuse "effectively testified" that

defendant was guilty); State v. King, 167 Wn.2d 324,219 P.3d 642 (2009) (State




                                              13 

No.30933-9-II1
State v. Quaale


conceded that officer's testimony that defendant's actions had been reckless within the

meaning of that element of the crime of reckless driving was improper).

        The State argues, however, that this case is on all fours with Heatley, in which

Division One of this court held that an officer permissibly testified to his determination

that the defendant was'" obviously intoxicated and affected by the alcoholic drink that

he'd been, he could not drive a motor vehicle in a safe manner.'" 70 Wn. App. at 576.

We agree that the subject matters on which the opinions in Heatley were expressed-

intoxication and impairment-are the same as the subject matters here. But there are

critical differences between the opinion offered in Heatley and the opinion offered in this

case.

        The opinion expressed in Heatley was, as that court pointed out, "based on [the

officer's] detailed testimony about his observations of Heatley's physical condition and

performance on the field sobriety tests." Id. at 581. As a foundation for his opinion, the

officer described a number of observations as well as Mr. Heatley's performance on tests

that included reciting the alphabet, counting backwards, and performing several balance

tests. "The jury was therefore in a position to independently assess the opinion in light of

the foundation evidence." Id. at 581-82. Some effects of alcohol are, as recognized in

Heatley, "'commonly known and all persons can be presumed to draw reasonable

inferences therefrom.'" Id. at 580 (quoting State v. Smissaert, 41 Wn. App. 813, 815,

706 P.2d 647 (1985)).

                                             14
No.30933-9-III
State v. Quaale


       In addition, the officer in Heatley spoke only to his determination based on these

fully described, nontechnical observations, not to certainty. As our Supreme Court has

since said of Heatley, "A lay person's observation of intoxication is an example ofa

permissible lay opinion. But the advisory committee to Federal Rule of Evidence 702

explained that witnesses should not tell the jury what result to reach and that opinion

testimony should be avoided if the information can be presented in such a way that the

jury can draw its own conclusions." Montgomery, 163 Wn.2d at 591 (citation omitted).

       Here, unlike in Heatley, Trooper Stone testified to an opinion arrived at from a test

that Baity concluded was scientific and subject to Frye. And rather than testify that Mr.

Quaale's HGN was consistent with consumption of alcohol, he testified that there was

"no doubt" as to impairment, exceeding the opinions that Baity held could permissibly be

expressed. Heatley itself recognized that "[w]hether testimony constitutes an

impermissible opinion on guilt or a permissible opinion embracing an 'ultimate issue'

will generally depend on the specific circumstances of each case." 70 Wn. App. at 579.

       Accordingly, while the "nature of charge" and "type of defense" factors might not

have weighed against admissibility had the trooper testified to a foundation whose

support for his opinion could be independently assessed by the jury, they do weigh

against admissibility here. The opinion addressed not only an ultimate fact, and not only

the core disputed fact, but in the form of a conclusion from scientific evidence that the

jury was not in a position to independently assess.

                                             15
No.30933-9-III
State v. Quaale


       As to the fifth factor-the other evidence before the trier of fact-Trooper Stone

offered testimony that Mr. Quaale smelled strongly of alcohol and he testified to Mr.

Quaale's reckless and irresponsible driving before being stopped and arrested. But

Trooper Stone was the only witness who offered evidence of Mr. Quaale's intoxication.

As a result, this fifth factor might not weigh in favor of excluding the evidence but it does

not weigh in favor of admitting it, either.

       Given four factors weighing against the admissibility of the opinion (one

strongly), and no factor weighing in favor, we conclude that admitting Trooper Stone's

testimony violated Mr. Quaale's constitutional right to have a fact critical to his guilt

determined by the jury.

       Constitutional error is harmless if the State establishes beyond a reasonable doubt

that any reasonable jury would have reached the same result in the absence of the error.

State v. Brown, 147 Wn.2d 330,341,58 P.3d 889 (2002). In light of the fact that the

trooper's testimony was the only evidence that Mr. Quaale's ability to drive a motor

vehicle was lessened in any appreciable degree, and the jury deadlock on the felony DUI

count in the first trial, the error was not harmless. The judgment and sentence must be

reversed and the case remanded for a new trial.




                                              16 

No.30933-9-III
State v. Quaale


         Has Mr. Quaale demonstrated prejudice from governmental misconduct
        that materially affected his right to a fair trial and cannot be remedied by
                                        a new trial?

       Mr. Quaale's three remaining assignments of error are related to his contention

that the State engaged in prosecutorial misconduct when it violated the court's order

limiting references to his license status in closing argument. Because we are reversing

and remanding the case for a new trial on other grounds, we need not reach two of these

assignments of error, which seek only reversal. There is no reason to believe that the

same limiting order will be needed in a retrial or, if needed, will be violated.

       Mr. Quaale's last assignment of error, however, is to denial of his motion to

dismiss. Because he seeks reversal with directions to dismiss the felony DUI charge with

prejudice, this assignment of error must be addressed.

       After obtaining a transcript demonstrating that his lawyer did not raise the revoked

status of his license in her closing argument, Mr. Quaale moved the court pursuant to

CrR 8.3(b) to dismiss the felony DUI charge against him for government misconduct.

CrR 8.3(b) provides in relevant part that

       [t]he court, in the furtherance ofjustice, after notice and hearing, may
       dismiss any criminal prosecution due to arbitrary action or governmental
       misconduct when there has been prejudice to the rights of the accused
       which materially affect the accused's right to a fair trial.

       The power to dismiss a prosecution under the rule is discretionary and is

reviewable only for manifest abuse of discretion. State v. Dailey, 93 Wn.2d 454, 456,



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No. 30933-9-111
State v. Quaale


610 P.2d 357 (1980). Dismissal is considered an extraordinary remedy for prosecutorial

misconduct and will be granted only when there has been prejudice to the rights of the

accused that materially affects his right to a fair trial and cannot be remedied by granting

a new trial. State v. Whitney, 96 Wn.2d 578,580,637 P.2d 956 (1981) (quoting State v.

Baker, 78 Wn.2d 327,332-33,474 P.2d 254 (1970».

       We need not determine whether there was prosecutorial misconduct that

prejudiced Mr. Quaale in the second trial, because it is clear that the prejudice he

identifies will not abide retrial. He may still argue whether the State's theory of why he

refused a breath test is relevant. He may still argue whether evidence of a prior arrest, or

that implicitly reveals a prior arrest, is subject to ER 404(b). He may still seek, through

rulings in the next trial, to make the argument he claims he was required to forgo in the

trial below.

       We reverse the judgment and sentence and remand for a new trial.




WE CONCUR:


Brown, J.


F~~~S: 

                                             18 

