[Copyrighted Material Omitted]
Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR., Judge.
Dennis R. Keefe, Lancaster County Public Defender, Jennifer Houlden, and, on brief, Elizabeth D. Elliott, and Claire K. Bazata, Senior Certified Law Student, 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.
[288 Neb. 164] Stephan, J.
Daniel D. Matit, also known as Yai Bol, was charged with and convicted of fourth-offense driving while under the influence (DUI). Matit was sentenced to a term of imprisonment of 2 to 3 years and his driver's license was revoked for 15 years. He appeals his conviction and sentence. Finding no reversible error, we affirm.
At approximately 1 a.m. on March 5, 2012, Sgt. Benjamin Miller of the Lincoln Police Department was conducting surveillance in a marked police car in the area of 13th and E Streets in Lincoln, Nebraska. Miller's car was parked about 1 1/2 blocks east of an apartment complex he was watching. Miller saw a vehicle parked on a concrete drive between the street [288 Neb. 165] and the sidewalk in what Miller referred to as " the city right of way" in front of the apartment complex. At various times, he saw people approach the vehicle.
On five separate occasions, Miller observed the taillights of the vehicle come on and saw exhaust coming from the tailpipe, making him believe the vehicle had been started, as if to drive away. Each time, the vehicle's engine stayed on for a few
minutes, but the vehicle did not move. Miller also saw a person who had been seated in the driver's seat exit the vehicle, urinate on a nearby tree, and then return to the vehicle.
Based on his observations, Miller made contact with the person in the vehicle, who provided identification demonstrating that he was Matit. Miller later learned that Matit also uses the name " Yai Bol" and that the vehicle was registered to Bol. Miller noticed that Matit's eyes were bloodshot and watery and that there was a strong odor of alcoholic beverage about Matit's person. In addition, Matit's speech was slurred and his dexterity was poor. Miller asked Matit to get out of the car, and when Matit did not cooperate, Miller opened the door and helped him out of the vehicle. As they approached Miller's police car, Miller noticed that Matit stumbled and staggered. Miller administered the horizontal gaze nystagmus test to Matit and observed impairment. Miller did not ask Matit to complete additional standardized field sobriety tests, because Matit was uncooperative and Miller was concerned about safety. Miller asked Matit to take a preliminary breath test. Matit refused, and Miller transported him to a detoxification center. After Matit was placed under arrest, he provided a breath sample. The test showed Matit's blood alcohol level was .216.
Matit was charged by information in Lancaster County District Court with DUI, over .15 concentration, and three prior convictions. One of the prior offenses was alleged to have occurred in Hall County, Nebraska, and the other two were alleged to have occurred in Vermont.
Matit filed a motion to suppress in which he asserted that police " lacked probable cause to contact, stop, detain, and/or arrest" him. He generally argued that Miller was not justified [288 Neb. 166] in pursuing a DUI investigation after contacting him, because he was parked on private property. After conducting a suppression hearing, the district court entered an order denying the motion. The court found that Matit's vehicle was " parked in virtually the middle of that portion of the concrete drive located between the street and the sidewalk (i.e., in the public right-of-way), facing towards the courtyard of the apartment complex." After considering this court's decisions in State v. Prater and State v. McCave the court reasoned that whether the concrete ...