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State v. Rask

Supreme Court of Nebraska

August 26, 2016


         1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         2. 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.

         3. 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.

         4. 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.

         5. 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.

         6. 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).

         [294 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.

         8. Statutes. In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning.

         9. 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.

         10. 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.

         11. 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.

         12. Words and Phrases. The word "or, " when used properly, is disjunctive.

         13. 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 vehicle.

         14. 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.

         15. 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.

         Appeal 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.

          Kevin K. Knake, of Law Office of Richard L. Alexander, for appellant.

         [294 Neb. 614] Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          Heavican, C.J.

         I. NATURE OF CASE

         In the 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.


         According 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.

         Afterward, 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 Corr's home.

         Rask 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.

         After 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.

         Around 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.

         Rask 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.

         Kring 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.

         [294 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 the advisement.

         A jury 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.


         Rask 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 ...

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