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State v. Tjaden

Court of Appeals of Nebraska

October 29, 2013

State of Nebraska, appellee,
v.
Donald R. Tjaden, appellant

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Perkins County, Donald E. Rowlands, Judge, on appeal thereto from the County Court for Perkins County, Edward D. Steenburg, Judge.

James J. Paloucek, of Norman, Paloucek & Herman Law Offices, and Russel L. Jones, of Jones Law Office, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Inbody, Chief Judge.

INTRODUCTION

After Donald R. Tjaden left his home in the middle of the night to check on the source of a bright light coming from a highway about a half mile from his home, he was arrested and charged with, among other things, driving under the influence. Following his convictions, he appealed, contending that his requested jury instruction regarding "choice of lesser harm" should have been given to the jury.

STATEMENT OF FACTS

On the evening of August 27, 2011, Tjaden, his friend, and Tjaden's girlfriend attended a street dance in Madrid, Nebraska. Throughout the evening, the friends had a good time, Tjaden and his friend drank some beer, and Tjaden's girlfriend acted as the designated driver. At some point later that evening, the friends decided to leave the street dance and return to Tjaden's house, which is located about 2 miles east of Madrid on Nebraska Highway 23 and then a half mile north on County Road 340. The drive was uneventful, and they saw nothing unusual on the drive to Tjaden's home. After arriving at Tjaden's home, Tjaden and his friend continued to drink, talk, and watch television. After about an hour, Tjaden fell asleep on the couch, his girlfriend went into a bedroom to read a book, and his friend continued to watch television.

Later, Tjaden's girlfriend came out of the bedroom and woke Tjaden to tell him that cows in a nearby pasture were "bawling, " which is a warning sign that something is wrong and could mean that there was a predator around, a calf was down, or a calf had gotten out of the pasture. Tjaden and his friend went outside, heard the cows "bawling, " and saw a very bright light down at the highway. Concerned that there might have been an accident or that cattle had gotten onto the highway, Tjaden decided to drive his pickup to the area and see what was going on or if someone was in trouble and needed assistance, while Tjaden's friend and girlfriend remained at the house.

The lights actually turned out to be illuminating a regulatory vehicle checkpoint that police had set up on Highway 23 at the intersection of County Road 340. The checkpoint was to run from approximately 11:30 p.m. to 1:30 a.m., and since the intersection was dark at night, a portable lighting system was set up to illuminate the checkpoint area. The lighting system, which stood 20 to 40 feet above the highway, was stationed on the south side of Highway 23 on County Road 340, facing to the north and pointed directly toward Tjaden's house. Signs announcing the checkpoint were placed on the roadways in all four directions surrounding the checkpoint. On Highway 23, there were large reflective signs set up approximately one-half to 1 mile away from the actual checkpoint in either direction. On County Road 340, there were smaller signs set up approximately 20 to 30 feet from the actual checkpoint in either direction.

It was shortly before 1:30 a.m. on August 28, 2011, when Nebraska State Patrol Trooper Matthew Schmit observed a pickup driving south on County Road 340 approach the checkpoint, but then stop and shut off its lights. Because there was no shoulder on the road and Schmit felt that the vehicle was improperly parked in the traffic lane of the road, Schmit got into his patrol car and drove to see if the motorist needed assistance. As Schmit approached the pickup, the pickup drove south past him and sped away, so Schmit turned his patrol car around and pursued the pickup, eventually conducting a traffic stop near the vehicle checkpoint.

Upon Schmit's making contact with the sole occupant of the pickup, Tjaden identified himself to Schmit, but Tjaden did not have his driver's license, vehicle registration, or proof of insurance, and he was not wearing his seatbelt. Additionally, Schmit noticed that Tjaden smelled of alcohol and was slurring his speech. When Schmit asked Tjaden if he had been drinking, Tjaden said that he had drank "a lot, " which Tjaden clarified meant seven or eight beers. Upon being arrested for driving under the influence, Tjaden told Schmit that there was an unloaded shotgun in his pickup, which was later determined to ...


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