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State v. York

Court of Appeals of Nebraska

October 15, 2013

State of Nebraska, appellee,
v.
Tracy York, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Scotts Bluff County, Randall L. Liipstreu, Judge, on appeal thereto from the County Court for Scotts Bluff County, Kristen D. Mickey, Judge.

Bell Island, of Island & Huff, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Irwin, Judge.

I. INTRODUCTION

Tracy York appeals his convictions for driving under the influence (DUI) and refusal to submit to a chemical test. On appeal, York asserts that the trial court erred in refusing to allow him to call a proffered witness, in failing to direct a verdict on the refusal charge, in failing to give a proposed jury instruction, and in denying a motion for mistrial. We find no merit to these assertions, and we affirm.

II. BACKGROUND

The events giving rise to this appeal occurred on or about August 20, 2011, in Scotts Bluff County, Nebraska. Elizabeth Magelby testified that on that date she was a passenger in a vehicle driven by her husband when a pickup truck rapidly approached the rear of their vehicle and appeared as if it was going to strike their vehicle. She testified that this happened more than once and that she telephoned the 911 emergency dispatch number to report an erratic driver. The truck eventually passed the Magelbys' vehicle, and they followed it. Elizabeth testified that she observed the truck drifting across the centerline--including drifting so far that all four tires crossed the centerline into the oncoming lane--and then correcting several times. She eventually observed a deputy sheriff stop the truck.

A Deputy Still testified that he responded to the 911 call. He testified that when he arrived in the area of the truck, he observed it drift off the pavement, then correct itself, and then drift into the oncoming lane of traffic, in which Still was driving. He testified that he pulled off the roadway to avoid being struck and that he then turned around and effected a traffic stop on the truck.

Upon making contact with the driver, identified as York, Still noted a strong odor of an alcoholic beverage. Still testified that York's speech was slurred, his face was flushed, and his eyes were bloodshot. Still also testified that York swayed from front to back when standing. According to Still, these indicators are consistent with intoxication.

Still then had York perform field sobriety tests. Still testified that he observed four indicators of impairment during York's performance of the "walk and turn" sobriety test, and that York failed the "one leg stand" sobriety test.

Based on all of his observations of York and York's performance on the field sobriety tests, Still formed the opinion that York had been driving under the influence, and he arrested York. Still recovered 15 full cans of beer and 1 bottle of beer in a cooler in the back of York's truck. Upon arresting York, Still transported York to the jail.

At the jail, Still read York a postarrest rights advisement form and requested York provide a breath sample. York would not provide a breath sample, and he requested that a blood test be performed. Still requested a breath sample multiple times, and York declined to provide one each time and made multiple requests for a blood test. Still advised York that he was not entitled to a blood test.

A complaint was filed in county court, charging York with DUI and refusal to submit to a chemical test.

Prior to trial, the State objected to York's indication that he intended to call a witness who had not previously been disclosed to the State by York. York acknowledged that he had not disclosed the witness during pretrial disclosures, but asserted that he was not obligated to do so because he had not requested the identity of the State's witnesses in his own discovery requests. The county court ruled that its pretrial order requiring disclosure would "stand" and indicated that York would ...


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