(dissenting).
I respectfully dissent. Walter Hoppe pleaded not guilty to three gross misdemeanor charges: driving under the influence of alcohol within ten years of the first of two or more prior impaired-driving convictions, driving with a blood-alcohol concentration in excess of .10 within ten years of the first of two or more prior impaired-driving convictions, and driving under the influence before his driver’s license had been reinstated following its revocation for driving while under the influence of alcohol.
In order to prove that Hoppe was guilty of the gross misdemeanor charges, the state had to prove two or more prior impaired-driving convictions within 10 years of the current charges and that his license was revoked for driving while under the influence. See Minn.Stat. § 169.121, subd. 3(c), .129, subd. 1 (Supp.1999) (defining enhanced gross misdemeanor). Hoppe refused to stipulate to the requisite prior convictions, or that his license was revoked, and the state offered Hoppe’s certified driving record to prove the necessary elements of the offenses.
Hoppe’s defense was that he did not remember whether his Minnesota license was reinstated, that he had a copy of a license application for which he had paid a fee, and that he believed that he was therefore licensed to drive in Minnesota. In summation and rebuttal summation, the prosecutor attempted to persuade the jury that the defense was not credible. The argument was not a model prosecution argument. But even assuming that the majority correctly characterizes the statements as prosecutorial misconduct, the facts do not warrant a new trial.
A defendant is not entitled to a new trial when it can be said with certainty that prosecutorial misconduct is harmless beyond a reasonable doubt. State v. Porter, 526 N.W.2d 359, 365 (Minn.1995). When applying the harmless error test, a reviewing court looks to the basis on which the jury rested its verdict and determines what effect the statements had on the verdict. State v. Ashby, 567 N.W.2d 21, 28 (Minn.1997). If the verdict is surely unattributable to the misconduct, the error is harmless beyond a reasonable doubt. Id. To evaluate the possible effect of misconduct, the court also looks to evidence supporting the defendant’s theory, the length *324of jury deliberations, and whether the defendant objected to the conduct or sought a curative instruction. See State v. Griese, 565 N.W.2d 419, 428 (Minn.1997); Porter, 526 N.W.2d at 359.
The evidence against Hoppe was overwhelming. The arresting officer observed Hoppe’s vehicle weave within the lane several times and touch the right fog line. After stopping Hoppe’s vehicle and speaking with him, the officer immediately noticed the smell of alcohol. He also observed that Hoppe’s eyes were bloodshot and glassy and that his speech was slow and slurred. After Hoppe got out of his car the officer observed that Hoppe was swaying. Hoppe failed three field sobriety tests, which included the one-legged standing test, the walk-and-turn test, and the horizontal Nystagmus test. Approximately one hour after Hoppe was stopped, he took two intoxilyzer breath tests. The first one indicated Hoppe’s blood alcohol-content was .163. The second test, administered four minutes later, produced a reading of .165.
Hoppe offered little evidence to refute the state’s affirmative proof. He testified that he consumed four cans and one glass of beer. His drinking companion testified similarly. He suggested that he failed the field sobriety tests because of physical limitations. He conjectured that the intoxi-lyzer test results were the product of a faulty machine or an inexperienced test administrator. His attorney suggested to the jury that a .16 result from the breath test one hour after his arrest could mean that he was less than .10 at the time of his arrest, but no evidence supported this argument. Although his attorney made objections, many of which were sustained, the attorney made no objections to the prosecutor’s comments that are challenged on appeal. His attorney sought no curative instruction. The jury reached a guilty verdict on all three charges 80 minutes after it began deliberations.
The district court is in the best position to evaluate the effect of an unprofessional closing argument. Ashby, 567 N.W.2d at 27. The district court denied the new trial and that decision should stand. The prosecutor’s argument was at best inartful and at worst misconduct. But on this record, Hoppe’s convictions were surely unattributable to the prosecutor’s inappropriate statements in summation, and I would affirm.