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State v. Wang

Supreme Court of Nebraska

August 14, 2015

STATE OF NEBRASKA, APPELLEE,
v.
JIN R. WANG, APPELLANT

Page 565

Appeal from the District Court for Lancaster County: KAREN B. FLOWERS and ROBERT R. OTTE, Judges.

Mark E. Rappl for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., not participating.

OPINION

Page 566

[291 Neb. 633] Miller-Lerman, J.

NATURE OF CASE

Jin R. Wang appeals his conviction in the district court for Lancaster County for driving under the influence (DUI), third offense. Wang claims that the district court erred when it over-ruled his motion to suppress evidence of a chemical breath test and admitted the evidence at trial. Wang argues that the evidence should have been suppressed because his alleged statutory right to advisement under Neb. Rev. Stat. § 60-6,199 (Reissue 2010) and his constitutional rights to due process and equal protection were violated when the arresting officer failed to advise him, in a language he could understand, that he had a right to obtain an evaluation by an independent physician and additional laboratory testing. We find no error and affirm Wang's conviction.

STATEMENT OF FACTS

At issue in this case is § 60-6,199 which provides:

The peace officer who requires a chemical blood, breath, or urine test or tests pursuant to § 60-6,197 may direct whether the test or tests shall be of blood, breath, or urine. The person tested shall be permitted to have a [291 Neb. 634] physician of his or her choice evaluate his or her condition and perform or have performed whatever laboratory tests he or she deems appropriate in addition to and following the test or tests administered at the direction of the officer. If the officer refuses to permit such additional test to be taken, then the original test or tests shall not be competent as evidence. Upon the request of the person tested, the results of the test or tests taken at the direction of the officer shall be made available to him or her.

Wang, who is Chinese and only speaks " some English," was arrested on suspicion of driving under the influence. Wang was taken to a " Detox" center, where he was required to submit to a chemical breath test. The officer who arrested Wang read to him, in English, an advisement stating that under § 60-6,199, he was permitted to have a physician of his choice evaluate his condition and perform whatever laboratory tests the physician deemed appropriate.

Prior to trial, on October 18, 2013, Wang moved the district court to suppress evidence of the results of his breath test because, inter alia, he was not properly advised of his right to obtain testing by an independent ...


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