Review Denied Sept. 17, 2013.
Alan E. Trimming, Ada County Public Defender; Thomas J. Moore, Deputy Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
Tracy Lorene Davis appeals from the district court's appellate decision affirming her conviction in magistrate court for driving under the influence of alcohol. We affirm.
A Meridian police officer stopped Davis's vehicle after observing a number of traffic infractions. The officer noticed that Davis had watery, bloodshot eyes and detected an odor of alcohol coming from the vehicle. Davis admitted consuming two glasses of wine at a local bar but explained that she
also had drunk a lot of water. The officer conducted field sobriety tests, which Davis failed. Davis was placed under arrest and transported to the police department for breath alcohol testing. Davis's test returned BAC levels of .087 and .090, both in excess of the statutory limit of .08. She was then charged with misdemeanor driving under the influence of alcohol.
On the morning of the first day of trial, Davis expressed her intent to introduce an audio recording of the traffic stop. The State objected on the ground that Davis's statements contained in the recording were inadmissible hearsay when offered by Davis herself. The prosecutor suggested that Davis was trying to introduce into evidence the substance of those statements— giving as examples her statements regarding how much wine and water she had consumed— rather than testifying at trial and being subject to cross-examination. Counsel for Davis responded that while the recording " definitely [included] statements by my client that she made that night" the recording remained " highly relevant" and that the State would not be prejudiced by its admission. With no hearsay exception having been identified by Davis, the magistrate ruled that Davis's statements were inadmissible hearsay when offered by her and that the recording would either be excluded or could be redacted to excise those statements. After jury voir dire was completed, counsel for Davis briefly returned to this issue, stating that he " wanted to make a formal record" that the recording was " not offered for the truth of the matter asserted." He did not, however, describe any nonhearsay purpose of the use of this evidence. The magistrate court adhered to its previous ruling. Davis ultimately was found guilty by the jury.
Davis appealed to the district court, asserting that the magistrate court erred in excluding as hearsay portions of the officer's audio recording of the stop and his conversation with Davis. Davis argued to the district court that the hearsay rule did not apply to the recording because she did not seek its admission for the truth of her recorded statements but, rather, for nonhearsay purposes. The district court held that the issue of Davis's nonhearsay rationale for use of the recording was not preserved for appeal and declined to address it. Davis also contended that the magistrate erred in precluding cross-examination of the officer about a remark he made to Davis concerning her breath test results. The district court concluded that this issue also was not properly preserved for appeal because Davis abandoned the issue at trial. Davis now further appeals to this Court.