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State v. Rush

Court of Appeals of Nebraska

October 1, 2013

State of Nebraska, appellee,
Clifford L. Rush, appellant.


Appeal from the District Court for Lancaster County: John A. Colborn, Judge.

Dennis R. Keefe, Lancaster County Public Defender, and John Jorgensen for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Moore, Pirtle, and Bishop, Judges.


Moore, Judge.


Clifford L. Rush appeals from his conviction following a jury trial in the district court for Lancaster County of driving under the influence (DUI), third offense, with refusal to submit to a chemical test and driving during revocation. Rush challenges the denial of his motions to suppress evidence obtained following the stop of the vehicle he was driving and the statements he made following the stop. He also asserts that the district court failed to make sufficient findings of fact in denying his motions to suppress and erred in admitting evidence regarding his failure to submit to a breath test. Finally, Rush argues that there was insufficient evidence to show he was under the influence of alcohol at the time of the stop and that the sentences imposed upon him were excessive. Finding no merit to Rush's assignments of error, we affirm.



On April 26, 2012, the State filed an information charging Rush with DUI, third offense, with refusal to submit to a chemical test in violation of Neb. Rev. Stat. §§ 60-6, 196 (Reissue 2010) and 60-6, 197.03(6) (Cum. Supp. 2012), a Class IIIA felony, and driving during revocation in violation of Neb. Rev. Stat. § 60-4, 108(1)(a) (Reissue 2010), a Class II misdemeanor.

Motion to Suppress.

Rush filed motions to suppress and a motion requesting a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The district court heard Rush's motions on June 25, 2012.

The evidence at the hearing shows that police officers John Kossow and Justin Roach were on patrol in their cruiser on March 10, 2012, when, at about 10:55 p.m., they ran a routine license plate check of a van driving in front of them. Upon running the plate check on their mobile data terminal, the officers learned that the registered owner of the van, Timothy Rush, had a 15-year license suspension. The information on the terminal included both a Department of Motor Vehicles photograph of Timothy and a booking photograph from prior police contacts. Kossow testified that the officers pulled up next to the van on the driver's side. Kossow had had prior contact with Timothy, and upon comparing the photographs displayed on the terminal with the face of the person driving the van, the photographs appeared to be of the same person. Although the lighting was not perfect, Kossow felt it was sufficient that he was able to get a look at the driver, whom he thought was Timothy.

When the stoplight changed, the officers began to follow the van, and Kossow activated the cruiser's overhead lights. Because the van continued without stopping, Kossow started "hitting the siren." The officers continued to follow the van until it pulled into a gas station. It did not appear that the van pulled over in response to the lights and siren, but instead appeared to have pulled up to the gas pumps. The driver got out of the van and did not acknowledge the officers' presence until Kossow spoke to him and directed him to get back in the van. Kossow asked the driver why he did not stop, and as Kossow approached the driver, he detected a very strong odor of alcohol. Kossow realized simultaneously that the driver was not Timothy and that the driver was intoxicated. Kossow formed his belief that the driver was intoxicated based on his observations of slurred speech, watery and bloodshot eyes, and extreme confusion. Upon observing the driver more closely, Kossow realized that the driver was Rush, Timothy's brother, whom Kossow also knew from previous encounters. Kossow had dealt with both of them in the past, and he testified they look enough alike that they could be mistaken for one another. Kossow thought that Rush also did not have a driver's license.

Kossow then asked Rush for his driver's license, and Rush appeared confused and extremely intoxicated. Eventually, Rush gave his name, and when the officers checked his driver's license status, they confirmed that his license was suspended as well. Kossow asked Rush to perform some field sobriety tests, which he did, and Rush showed impairment on all of them. Roach administered a preliminary breath test (PBT), which Rush failed as well. During Kossow's contact with Rush, he observed generally that Rush was very unsteady, had trouble walking, and swayed as he stood. Kossow commented to Rush that it was obvious he had been drinking, and Rush said he had had "one." Kossow told Rush that he knew he should not be driving because he did not have a license and because he had been drinking, and Rush yelled back that he knew he did not have a license. After the PBT, the officers placed Rush under arrest. Kossow testified that he formed the opinion Rush was under the influence based on Rush's performance on the field sobriety tests, his general appearance, and the PBT, although Kossow formed this opinion even before Rush took the PBT.

Roach also testified about the events on the evening of March 10, 2012. His testimony was substantially similar to Kossow's testimony, except that Roach indicated that the officers initially pulled alongside the passenger side of the van. Roach indicated that the individual he saw driving appeared to be Timothy, as the facial features of the driver very closely matched those in the photographs of Timothy. According to Roach, the van continued moving after the officers activated the cruiser's overhead lights, almost like the driver was ignoring the police. Roach stated that Kossow "tripped" the siren a few times too, but the van just kept going until it stopped at the gas pump, at which point the officers initiated contact. While Kossow approached the driver of the van, Roach contacted the passengers. Roach did not have contact with the driver until Rush was placed in the back seat of the cruiser. Roach thereafter performed the PBT on Rush.

Once Rush was arrested, the officers transported him to jail, took Rush to the testing room, read him the postarrest chemical test advisement, and began the formal testing process. Roach read the advisement to Rush, slid the advisement form over to Rush, asked him if he understood it, and told him he had the right to read it himself. Roach also asked Rush if he had any questions and told him he had to sign by the "X" if he understood what was read to him. Rush became belligerent and out of control, refused to sign the form, and slid it back to Roach. Roach then checked Rush's mouth for foreign objects, began the 15-minute observation period, and gave Rush the opportunity to take the breath test, which Rush refused. At some point, Rush told Roach that he has asthma and pointedly told the officers that he was not going to take the test since he had already taken the PBT. Although Kossow and Roach repeatedly explained to Rush the reason for the two tests and told him this was the formal test, Rush called them several names and said he would not take the test. According to Roach, Rush's statements were not made in response to questions from the officers. Roach testified that at the jail, neither officer attempted to elicit information from Rush other than in response to demographic questions.

Following the State's presentation of evidence, Rush's attorney asked the court to suppress Rush's statements that he "only had one" and that he knew he should not be driving, arguing that Rush was not free to leave the officer's presence when those statements were made. Rush apparently wanted his answers to the demographic questions at jail suppressed too because he had been arrested but not given his Miranda warnings when those questions were asked. Rush also asked the court to suppress the evidence from the stop because of the discrepancy between Kossow's and Roach's testimony about which side of the van they pulled up to in order to observe the driver and that the mistake in identity should result in suppression. Finally, Rush argued that the refusal to submit to the breath test should be suppressed because a refusal is now "part and parcel of an aggravated offense" and he was not advised of that, but was simply told that refusal to submit to the test is a separate crime for which he could be charged.

The district court took the matter under advisement and set a date for a ruling on the motions to suppress and the Jackson v. Denno issues. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). On August 15, 2012, the court made its ruling and made specific findings of fact and conclusions of law on the record. Rush's attorney then asked the court for a written order with more specific findings of fact, particularly in regard to the statements made. The court ultimately agreed to prepare a written order and withdrew any findings it had previously made pending issuance of the written order.

On September 20, 2012, the district court entered a written order denying all of Rush's motions to suppress. The court found that the officers reasonably believed Timothy was driving the van on a suspended license and therefore lawfully stopped the van. The court found that even though they were mistaken as to the identity of the driver, it was a reasonable mistake of fact based on the officers' observations of the driver and of Timothy's photographs and the fact that the van was registered to Timothy. The court found that upon contacting the driver, it was immediately apparent to Kossow that Rush was extremely intoxicated. The court concluded there was "probable cause" to stop the van and probable cause to arrest Rush, and accordingly, it overruled the motion to suppress evidence.

The district court further found that the statements Rush made upon initial contact with the police and prior to his arrest were freely, voluntarily, knowingly, and intelligently made. The court found that Rush was not in custody when these statements were made and that they were admissible. The court also overruled Rush's motion to suppress most of his statements made after he had been arrested. The court found that no Miranda warnings were given after Rush was placed under arrest, and it concluded that, except as set forth further in the order, any statements Rush made in response to questions by the officers should be suppressed. The court found that Rush's statements made that he was refusing to submit to a chemical test were admissible and denied the motion to suppress as to statements made regarding Rush's refusal to submit. The court also found that any statements volunteered by Rush were admissible and overruled the motion as to any volunteered statements, which included belligerent statements made by Rush calling the officers names and a statement he made indicating that he "wanted to go to his cell and pass out." The court found that a review of all of Rush's statements revealed that he had knowledge and understanding of what was said and that his answers were responsive to the officers' questions. The court found that Rush's statements were ...

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