(dissenting) Research indicates this is a case of first impression in this state. Logic dictates the case should be remanded for a new trial based upon the trial court's error in not granting the defendant's request for a mistrial.
The defendant's motion in limine was first argued February 9, 1980, at which time defendant moved to suppress the use of his prior conviction in 1976 for delivery of a controlled substance. The defense argued that the circumstances of the case were such that Latham would be compelled to testify to assert his innocence. The prosecution insisted that it be allowed to use the prior conviction to attack the defendant's credibility in the event he testified. The court ruled that ER 609 did not prevent the use of a prior conviction for impeachment of credibility, citing State v. Murray, 86 Wn.2d 165, 543 P.2d 332 (1975). Thus, the prior conviction would be admissible if the defendant took the stand.
The trial began on March 11, 1980. Before voir dire *69began, the court informed counsel that the motion in limine had been re-researched and would be granted. When voir dire was concluded, defense counsel reminded the court that the new ruling was to be put on the record. The court stated the defendant had received a deferred sentence and eventually had his plea of guilty changed to not guilty and the information dismissed. Thus, the prior conviction would fall under ER 609(c) which prohibits the use of a prior conviction if the defendant has received a pardon, annulment or certificate of rehabilitation. Defense counsel had previously informed the court and the prosecution that defendant had received a final discharge restoring civil rights on February 28, 1978, but he had never received a deferred sentence.
On March 11, 1980, the court stated that the Latham case had been confused with some other case and reinstated its earlier ruling allowing the use of defendant's prior conviction. At that point, voir dire was completed. Defense counsel moved for a mistrial, due to the inability to question prospective jurors regarding the effect the admission of this prior conviction might have on their impartiality.
While this matter was on appeal, the Supreme Court issued its opinion in State v. Alexis, 95 Wn.2d 15, 621 P.2d 1269 (1980). This decision dealt exclusively with ER 609 and the admission of prior felony convictions.
In Alexis we held that when evidence of a prior conviction is offered to impeach a defendant who is testifying in his own defense, ER 609 requires the trial court to balance the importance of the jury's hearing the defendant's testimony against the importance of its knowing of the prior conviction as an aid in evaluating the defendant's credibility as a witness. Each case should be evaluated on its own facts, including the length of the defendant's criminal record, the remoteness of the prior conviction, the nature of the prior crime, the age of the defendant, the centrality of the credibility issue, and the impeachment value of the prior conviction.
The trial court in the subject case considered none of *70these criteria when deciding the 1976 controlled substance conviction would be admitted to attack the defendant's credibility if the defendant testified. The trial court, citing Murray, essentially stated that any felony conviction was admissible to attack credibility.
This court discussed the dangers of admitting a prior unrelated conviction in Alexis. Quoting from State v. Nass, 76 Wn.2d 368, 371, 456 P.2d 347 (1969), we noted at page 18 of Alexis:
It is obvious that evidence of former convictions is so prejudicial in its nature that its tendency to unduly influence the jury in its deliberations regarding the substantive offense outweighs any legitimate probative value it might have in establishing the probability that the defendant committed the crime charged.
In Alexis, at page 19, we also emphasized that "[i]n this case for example, unless the defendant testifies it is highly unlikely that his version of the matter will get before the jury". Defendant Latham was in exactly this predicament. He could decline to testify and have the jury wonder what his explanation was — especially when it is obvious that he was in the burning house — or he could testify and have the jury hear of his prior conviction regarding sale of drugs.
In changing its ruling after voir dire was completed, the court denied the defendant the opportunity to examine prospective jurors regarding what effect the defendant's prior conviction for sale of drugs would have on prospective jurors. Thus, the defense was handicapped in using its peremptory challenges as well as challenges for cause. See CrR 6.4, RCW 4.44.150-.250.
As stated in Smith v. Kent, 11 Wn. App. 439, 523 P.2d 446 (1974), the peremptory challenge is an important and substantial right which protects a party's constitutional right of trial by jury. Voir dire examination of prospective jurors is intended to enable a party to exercise this right; a party is entitled to rely upon sworn statements of prospective jurors during voir dire.
In the subject case, defense counsel was concerned about *71the extreme reaction prospective jurors had to the mere mention of alcohol during voir dire. Pursuant to the court's ruling, defendant was informed that this same jury would be told of defendant's prior conviction for selling drugs when he testified.
The State, in arguing against the motion for a new trial, contended that the defense should have been aware that motions in limine are always tentative. I am not persuaded by this argument. The case cited by the majority, Jordan v. Berkey, 26 Wn. App. 242, 611 P.2d 1382 (1980), is not helpful. In Jordan, the defendant moved for an order in limine excluding, among other things, '"[t]he mention of alcohol or any activity related to the use of alcohol or an alcoholic beverage by the Plaintiff.'" The Jordan court granted the motion but stated, "'Well, if it's relevant it will come in, but now I don't see how it gets to be relevant"'. Jordan, at 243, 244. There was mention of liability in Jordan. Later, however, the introduction of various medical records revealed that alcohol was relevant as to the proof of damages. The court then reversed itself, permitting testimony of alcoholism to be admitted. The Court of Appeals, affirming the trial court's reversal of holding on motion in limine, stated:
At the time of the hearing on the motion in limine, the court had not been apprised of the nature of Jordan's multiple claims and was not then in a position to rule definitively upon the admissibility of evidence of Jordan's use of alcohol except, of course, on the question of liability. See Fenimore v. Donald M. Drake Constr. Co., 87 Wn.2d 85, 549 P.2d 483 (1976).
Moreover, the "order" was not as definite as Jordan asserts. Primarily, the court was confronted with an admission of liability. The court deferred ruling upon the question as it might pertain to damages. When that time came, when the evidence was in, the court ruled Jordan's use of alcohol was admissible for the purpose of assessing his physical condition. The court did not err. Sarrio v. Reliable Contracting Co., 14 Md. App. 99, 286 A.2d 183 (1972); D'Amato v. Johnston, 140 Conn. 54, 97 A.2d 893 (1953).
*72Jordan v. Berkey, supra at 244-45.
The Court of Appeals in the present case stated:
We believe there are times when motions in limine are, of necessity, tentative, advisory and not the basis of error because the prejudicial effect of the evidence can only be determined at the time it is introduced during trial. However, there are questions concerning admissibility of certain evidence that can and should be determined prior to trial by motions in limine for the benefit of the parties and the proper administration of justice. After all,
[t]he purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation.
State v. Evans, 96 Wn.2d 119, 123, 634 P.2d 845 (1981). Furthermore, Washington courts in numerous cases have stated that rulings on motions in limine are more than tentative; and once the court has granted such a motion, no objection is necessary to preserve the right to claim error if the evidence is nevertheless admitted.
State v. Latham, 30 Wn. App. 776, 780, 638 P.2d 592 (1981).
The Court of Appeals found the trial judge in the subject case committed error, stating, "We find the court erred by reversing its prior ruling on the motion in limine after voir dire of the jury". Latham, at 780. The majority more or less agreed, saying that such conduct may constitute error. Both, however, emphatically conclude that the error was harmless. The Court of Appeals, at page 781 in Latham, said:
The verdict of the jury in a criminal case will be set aside and a new trial granted only if the error is prejudicial; a prejudicial error is one which affects, or presumptively affects, the final result of the trial. State v. Craig, 82 Wn.2d 777, 784, 514 P.2d 151 (1973); State v. Beard, 74 Wn.2d 335, 341, 444 P.2d 651 (1968). When the defendant's guilt is consistently proven by competent evidence and no other rational conclusion can be reached then the conviction should not be set aside. State v. Beard, supra at 342. We hold that although the court committed error, the error was not prejudicial as it did not affect the final result.
*73I do not agree. A conviction for the crime of selling or dispensing hard drugs is extremely serious in light of the harm done by a drug seller to so many members of society. In many countries, a person convicted of such a crime is immediately executed by a firing squad. Any competent attorney would want to question each juror to determine whether or not the conviction of this heinous crime would have such a prejudicial effect against his client that a fair trial would be impossible. Here, the effect of his prior conviction on prospective jurors may have become obvious upon questioning, in light of the extremely negative responses many jurors had during voir dire concerning alcohol. For example, one juror was excused sua sponte without challenge from either counsel, because of "feelings" about anyone accused of a crime. Another juror's religious convictions made her firmly believe the consumption of alcohol was "wrong". Still another juror felt she could be fair except for one thing — she was "not sure regarding alcohol". The presence of alcohol alone might influence her judgment.
Conclusion
I would have held it was prejudicial error for the judge to reverse himself after impanelment of a jury, permitting testimony as to the defendant's drug conviction. This action deprived the defendant of the opportunity to question on voir dire the various jurors as to what prejudice, if any, they might attach to such conviction. Such an error was clearly prejudicial.
I would remand to the trial court for a new trial in accordance with the provisions of this decision.
Utter, J., concurs with Dore, J.
Reconsideration denied September 13, 1983.