Statutes: Appeal and Error. Statutory
interpretation presents a question of law, which an appellate
court reviews independently of the lower court's
Criminal Law: Juries: Evidence: Appeal and
Error. In a jury trial of a criminal case, an
erroneous evidentiary ruling results in prejudice to a
defendant unless the State demonstrates that the error was
harmless beyond a reasonable doubt.
Verdicts: Juries: Appeal and Error. In a
harmless error review, an appellate court looks at the
evidence upon which the jury rested its verdict; the inquiry
is not whether in a trial that occurred without the error a
guilty verdict would surely have been rendered, but, rather,
whether the guilty verdict rendered in the trial was surely
unattributable to the error.
Jury Instructions: Judgments: Appeal and
Error. Whether jury instructions given by a trial
court are correct is a question of law. When dispositive
issues on appeal present questions of law, an appellate court
has an obligation to reach an independent conclusion
irrespective of the decision of the court below.
Blood, Breath, and Urine Tests: Evidence: Proof:
Probable Cause. As a general rule, preliminary
breath test evidence is inadmissible as proof that a
defendant was impaired or intoxicated; the admissibility of
the results of a preliminary breath test is limited to the
purpose of showing probable cause either for an arrest or for
administering a chemical test.
Drunk Driving: Blood, Breath, and Urine Tests:
Implied Consent. Chemical test results are
admissible in all legal proceedings, even if that chemical
test was administered without the advisement required under
Neb. Rev. Stat. § 60-6, 197 (Cum. Supp. 2014).
Neb. 613] 7. ___: ___: ___. Neb. Rev. Stat. § 60-6, 197
(Cum. Supp. 2014) permits evidence of refusal to prove
driving under the influence charges, even when the defendant
was not properly informed that refusal is a separate crime.
Statutes. In the absence of anything to the
contrary, statutory language is to be given its plain and
Blood, Breath, and Urine Tests: Evidence. A
defendant's refusal to submit to a chemical test is
evidence of the defendant's conduct, demeanor,
statements, attitudes, and relation toward the crime.
Trial: Judges: Jury Instructions: Appeal and
Error. It is the duty of a trial judge to instruct
the jury on the pertinent law of the case, whether requested
to do so or not, and an instruction or instructions which by
the omission of certain elements have the effect of
withdrawing from the jury an essential issue or element in
the case are prejudicially erroneous.
Motor Vehicles. Where a person sits in the
driver's seat of a motor vehicle with the engine running,
parked on a public road, that person has actual physical
control of that motor vehicle.
Words and Phrases. The word "or, "
when used properly, is disjunctive.
Motor Vehicles: Words and Phrases. Actual
physical control of a motor vehicle may be adequately defined
as directing influence, dominion, or regulation of a motor
Jury Instructions: Proof: Appeal and Error.
To establish reversible error from a court's refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the
court's refusal to give the tendered instruction.
Self-Defense. The choice of evils defense
requires that a defendant (1) acts to avoid a greater harm;
(2) reasonably believes that the particular action is
necessary to avoid a specific and immediate harm; and (3)
reasonably believes that the selected action is the least
harmful alternative to avoid the harm, either actual or
reasonably believed by the defendant to be certain to occur.
from the District Court for Kearney County, Terri S. Harder,
Judge, on appeal thereto from the County Court for Kearney
County, Michael P. Burns, Judge.
K. Knake, of Law Office of Richard L. Alexander, for
Neb. 614] Douglas J. Peterson, Attorney General, and Melissa
R. Vincent for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and
NATURE OF CASE
early morning hours of January 17, 2014, Officer Jarvis Kring
of the Minden, Nebraska, police department discovered Bruce
V. Rask asleep in the cab of his running pickup truck. Rask
was charged, among other offenses, with driving under the
influence (DUI), third offense, in the county court for
Kearney County. A jury convicted Rask of DUI, and, on appeal,
the district court for Kearney County affirmed. Rask appeals
to this court. We affirm.
to evidence presented at trial, on January 16, 2014, Rask got
off work around 11:30 p.m. to midnight. He procured a 12-pack
of Bud Light beer before leaving work. Rask then picked up
his friend, Carson Corr. They drove to the home of another
mutual friend, where Rask and Corr each had one or two beers.
Rask and Corr stayed at the friend's house until
approximately 1 a.m.
Rask drove Corr back to Corr's residence. Rask and Corr
testified at trial that Rask was not impaired during the
drive back to Corr's house. However, Kring testified that
Rask had admitted that he got drunk before returning to
testified that he left the engine of his pickup truck running
because it was cold outside. He claims he did not pull into
Corr's driveway, because he did not want to wake
Corr's dogs and parents. Rask and Corr then sat in the
vehicle until about 3 a.m., talking and drinking. Rask and
Corr testified that they finished all but one beer out of the
12-pack of Bud Light. There is conflicting evidence in the
record, but [294 Neb. 615] it appears that Rask had between
four and six beers. Corr allegedly took the last bottle into
his home when he left, along with all the empty bottles. Rask
testified that he did not touch any controls of the truck
while sitting in front of Corr's residence.
Corr left, Rask decided to sleep in his truck. He alleges
that he believed sleeping in his truck was the right thing to
do because he did not want to get in trouble for driving
drunk. Additionally, Rask testified that even though he was
friends with Corr's parents, he did not go into
Corr's home because he did not want to wake anybody.
However, Kring testified that Rask later stated he did not go
inside because he had had an argument with Corr. In any
event, according to Rask, he had no feasible alternatives to
sleeping in his running truck.
4:40 a.m. on January 17, 2014, Kring was on duty and drove
past Rask's truck while on patrol. At about 5:25 a.m.,
Kring drove past again and this time noticed an elbow visible
through the window, so he stopped to investigate. He saw
Rask, whom Kring recognized, asleep in the driver's seat.
Eventually Kring was able to rouse Rask by yelling his name
through the partially open passenger-side window.
admitted to Kring that he was drunk. Additionally, Kring
noticed a "koozie" between Rask's feet,
containing what was later discovered to be a mostly empty
Miller Lite beer can. Corr testified at trial that he left
this can in Rask's truck sometime before January 16,
2014. Kring did not find any other alcohol containers in or
around the truck.
administered three field sobriety tests, each of which Rask
was unable to successfully complete. Kring testified at trial
that Rask also smelled of alcohol. Kring also administered a
preliminary breath test (PBT). The results of the PBT were
not offered at trial. After the PBT, Kring asked Rask whether
he would submit to a chemical blood test; Rask refused. Kring
testified at trial that during this interaction, Rask became
angry, kicking his truck and using expletives.
Neb. 616] The State charged Rask with three offenses: DUI, in
violation of Neb. Rev. Stat. § 60-6, 196 (Reissue 2010);
refusal to submit to a chemical test, in violation of Neb.
Rev. Stat. § 60-6, 197 (Cum. Supp. 2014); and possession
of an open alcohol container. The second count, refusal to
submit to a chemical test, was dropped by the State after a
"problem" was discovered. In his brief, Rask
asserts the "problem" was that Kring failed to give
Rask a proper advisement required under § 60-6, 197. The
record does not explicitly indicate the nature of the
so-called problem, but there is no evidence that Kring gave
found Rask guilty of the DUI charge, for which the county
court sentenced Rask to 180 days' imprisonment, a $1, 000
fine, and a 15-year suspension of his driver's license.
The county court also found Rask guilty of possession of an
open alcohol container and fined Rask $100 for that
infraction-a conviction from which Rask does not appeal.
ASSIGNMENTS OF ERROR
assigns, restated and renumbered, that (1) the county court
erred by admitting evidence that Kring performed a PBT, (2)
the county court erred by admitting evidence that Rask
refused to submit to a chemical blood test, (3) the State
committed prosecutorial misconduct by introducing evidence of
the PBT and the refusal, (4) the county court erred in
denying Rask's motion for a mistrial, (5) the county
court erred by giving a misleading jury instruction on the
definition of "actual ...