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State v. Bol

Supreme Court of Nebraska

May 16, 2014

STATE OF NEBRASKA, APPELLEE,
v.
YAI BOL, ALSO KNOWN AS DANIEL D. MATIT, APPELLANT

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Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR., Judge.

AFFIRMED.

Dennis R. Keefe, Lancaster County Public Defender, Jennifer M. Houlden, and, on brief, Elizabeth D. Elliott, for appellant.

Jon Bruning, Attorney General, George R. Love, and Joel R. Rische, Senior Certified Law Student, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

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[288 Neb. 146] Stephan, J.

Yai Bol, also known as Daniel D. Matit, was convicted of one count of driving under the influence (DUI) with refusal of a chemical test and one count of driving during revocation. He appeals, challenging his convictions and sentences. Finding no error, we affirm the judgment of the district court.

I. FACTS

An information filed in the district court for Lancaster County charged Matit, also known as Bol, with three counts. The charges arose out of a traffic stop that occurred on May 7, 2012. The information was later amended to charge Bol, also known as Matit, with two counts: DUI with refusal of a chemical test, three prior convictions, and driving during revocation or impoundment, first offense. Because the operative information uses the name " Bol," so will we in this opinion.

1. Motion to Suppress

Bol filed a motion to suppress evidence gathered during the traffic stop, claiming police lacked probable cause to initiate the stop. Sgt. Benjamin Miller of the Lincoln Police Department testified at a hearing on the motion. Miller testified that he was on patrol in the area of 13th and E Streets in Lincoln, Nebraska, at about 1:20 a.m. on May 7, 2012. While traveling west, he saw a sport utility vehicle (SUV) [288 Neb. 147] traveling east toward his patrol car begin to make a right turn at the intersection of 14th and E Streets, then erratically change direction, and then make another erratic turn, so that it ultimately made a complete U-turn and was heading west. The SUV did not use turn signals. After the SUV turned to head west, it almost immediately parked along the street. As Miller passed the SUV, he noticed it was parked almost 3 feet from the curb, which he believed was a violation of a city ordinance.

Miller decided to turn his car around and contact the driver of the SUV. As he did so, he saw Officer Anthony Gratz of the Lincoln Police Department turn onto E Street and drive toward the parked SUV. Miller asked Gratz to make contact with the driver of the SUV, because Gratz could get there more quickly. Gratz was thus the first officer to contact the SUV driver; Miller arrived shortly after Gratz.

After hearing this evidence, the district court denied Bol's motion to suppress. It found there was probable cause for police to initiate contact with the driver of the SUV based on Miller's observations of the erratic driving, the failure to use turn signals, and the manner in which the SUV was parked.

2. Trial

The case proceeded to a jury trial. At trial, Miller again explained what he observed prior to contacting the driver of the SUV and explained that he learned upon contacting the driver that he was Bol. Miller testified that he immediately noticed both that Bol had " bloodshot, watery eyes" and that there was an " odor of alcoholic beverage coming" from Bol and the SUV.

Bol agreed to participate in field sobriety tests, and Miller administered three: the horizontal gaze nystagmus test, the nine-step walk-and-turn test, and the one-leg stand test. Miller testified that Bol showed signs of impairment on each test. After Miller administered the tests, he placed Bol in his patrol car and asked him to take a preliminary breath test. Bol refused.

Miller then transported Bol to a detoxification center. At the center, Miller read Bol a postarrest chemical test [288 Neb. 148] advisement form, which informed Bol that he was required to take a chemical test and that refusal to do so was a separate crime. Bol refused to submit to the

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chemical test. Miller testified that after Bol refused the chemical test, Miller read Bol his Miranda rights.[1] Miller further testified that based upon his experience and training, Bol was under the influence of alcohol.

After Miller's testimony, the State rested. Bol's counsel then moved for a directed verdict, which was denied. Counsel for the State then informed the court, " I guess there's an issue we have to take up as far -- There's a trial stipulation that did not get into evidence." The court then acknowledged that there had been no evidence presented on the charge of driving under revocation and asked, " So, are we going to take out" that count? The State responded that it was asking for leave to reopen its case in chief to submit a written stipulation entered into by the parties on the revocation issue, which stipulation it had inadvertently failed to offer into evidence. Over Bol's objection, the court ...


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