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State v. Rodriguez

Court of Appeals of Nebraska

December 3, 2013

State of Nebraska, appellee,
v.
Lucio A. Rodriguez III, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Scotts Bluff County: Leo Dobrovolny, Judge.

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

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

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

Lucio A. Rodriguez III was charged with driving under the influence (DUI) with a blood alcohol level greater than .15, third offense; possession of cocaine; and possession of methamphetamine. After a jury trial, he was found guilty of DUI, but acquitted of the possession of cocaine charge. The court entered a directed verdict in Rodriguez' favor on the possession of methamphetamine charge.

On appeal, Rodriguez challenges the district court's analysis of the traffic stop and its order overruling his motion to suppress. He also argues the district court erred when it denied his motion for mistrial after the State conceded in opening argument that it could not prove one of the charges it was bringing to trial. Finding no merit to his assigned errors, we affirm.

FACTUAL BACKGROUND

On April 28, 2012, the Scotts Bluff County 911 emergency dispatch center received notification of a possible disturbance near a rental car business. When the dispatch center communicated this information to Officer Aaron Kleensang, the dispatcher noted that the caller stated that he had been pushed out of a moving vehicle. The dispatcher also stated that the caller identified the vehicle as a green GMC Envoy and stated that this vehicle left the area heading westbound on Highway 26.

At the time Kleensang received the dispatch, he was near the vicinity of the reported activity. While en route to the area, Kleensang observed a vehicle matching the description he received from the dispatch center traveling westbound on Highway 26. Kleensang made two turns, followed the vehicle onto 17th Avenue and 20th Street, and observed it stop on its own. The vehicle moved to the side of the road and parked before Kleensang activated his patrol car's emergency lights. Kleensang testified that he activated the lights to signal the driver that Kleensang wanted to talk with him.

Kleensang approached the driver and began to question him about the reported disturbance. Rodriguez was identified as the driver. Kleensang had other officers in the area make contact with the caller, and the caller was eventually brought to a nearby location. No other evidence was adduced about the caller, and there was apparently no further action taken in regard to the disturbance. While discussing the reported disturbance with Rodriguez, Kleensang made several initial observations. He detected a strong odor of alcohol and noticed that Rodriguez had a flushed face, slurred speech, and bloodshot, watery eyes. After administering three field sobriety tests, Kleensang believed Rodriguez was heavily intoxicated. Kleensang arrested Rodriguez following a preliminary breath test and transported him to the detention center in Scotts Bluff, Nebraska. Rodriguez then submitted to a "DataMaster" test at the detention center, and his breath tested at .226 grams of alcohol per 210 liters of breath.

During the booking process, Rodriguez' wallet was taken from him and inventoried. Kleensang testified this is standard procedure whenever he takes someone to jail. When the wallet was opened, two clear plastic baggies containing apparent controlled substances were discovered at the bottom. Preliminary tests were conducted on these substances at the jail. Subsequent tests at the Nebraska State Patrol crime laboratory revealed that one substance was cocaine and that the other substance was not a controlled substance.

On May 10, 2012, the State filed an information charging Rodriguez with DUI with a blood alcohol level greater than .15, third offense; possession of methamphetamine; and possession of cocaine. Rodriguez moved to suppress any evidence gathered from the stop and subsequent search, contending that the stop was not based on reasonable ...


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