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IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 38273 STATE OF IDAHO, Plaintiff-Respondent, v. DANIEL E. MARMENTINI, Defendant-Appellant. ) ) ) ) ) ) ) ) ) )

2011 Opinion No. 73 Filed: December 12, 2011 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Boise County. Hon. Patrick H. Owen, District Judge. Judgment of conviction for felony driving under the influence, affirmed. Molly J. Huskey, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. ________________________________________________ LANSING, Judge Daniel E. Marmentini was convicted of felony driving under the influence. He asserts that his conviction should be vacated because the prosecutor committed misconduct during closing arguments, violating his due process right to a fair trial. We affirm. I. BACKGROUND A law enforcement officer driving behind Marmentini on the highway noticed that Marmentini was swerving within his lane and repeatedly exiting and re-entering the highway. The officer followed Marmentini when he exited the highway a third time. After leaving the highway, Marmentini's vehicle turned around and headed back toward the officer and the highway. As he pulled alongside the officer's vehicle, Marmentini stopped, rolled down his window, and stated that he was looking for Floating Feather Road, a road located in another county. He then stated that he was looking for Harris Creek Drive. The officer smelled alcohol 1

on Marmentini's breath and noticed that his speech was slurred. In response to the officer's questions, Marmentini stated that he had not been drinking, but was slurring his speech because he was nervous. The officer conducted three field sobriety tests, which Marmentini either did not pass or could not complete. The officer then placed Marmentini under arrest for driving under the influence, and conducted two breath tests. The tests measured alcohol concentration levels of 0.224 and 0.225. Marmentini was subsequently charged with driving without privileges (DWP), Idaho Code

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