Statutes: Appeal and Error. Regarding questions of law
presented by a motion to quash, an appellate court is
obligated to reach a conclusion independent of the
determination reached by the trial court.
Constitutional Law: Statutes. A challenge to a statute
asserting that no valid application of the statute exists
because it is unconstitutional on its face is a facial
___:___. A plaintiff can only succeed in a facial challenge
by establishing that no set of circumstances exists under
which the act would be valid, i.e., that the law is
unconstitutional in all of its applications.
Constitutional Law: Statutes: Pleas: Waiver. In order to
bring a constitutional challenge to the facial validity of a
statute, the proper procedure is to file a motion to quash,
and all defects not raised in a motion to quash are taken as
waived by a defendant pleading the general issue.
Constitutional Law: Statutes. A motion to quash is the proper
method to challenge the constitutionality of a statute, but
it is not used to question the constitutionality of a statute
Constitutional Law: Statutes: Pleas. Challenges to the
constitutionality of a statute as applied to a defendant are
properly preserved by a plea of not guilty.
from the District Court for Lancaster County: Stephanie F.
J. Tarrell for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Neb. 800] Heavican, C.J., Wright, Miller-Lerman, Cassel,
Kelch, and Funke, JJ.
A. Corn well was charged by information with driving under
the influence and refusing to submit to a chemical test. His
motion to quash was denied, and he was convicted following a
jury trial. Cornwell appeals, and we affirm.
February 20, 2014, Cornwell was charged by information with
driving under the influence and refusing to submit to a
chemical test-in this case, a breath test. The record
includes a postarrest chemical test advisement form, which
noted in relevant part that the arresting officer had
"the authority to direct whether the test or tests shall
be of your breath, blood or urine, and may direct that more
than one test be given." The arresting officer then
filled out part "A" of that form: "Request
for test: I hereby direct a test of your ___ blood
x breath ___ urine to determine the
x alcohol ___ drug content.”
initially pled not guilty, but later withdrew his not guilty
plea and filed a motion to quash the information. As relevant
to the issues on appeal, Cornwell's motion to quash
alleged a facial challenge to Neb. Rev. Stat. §§
60-6, 197 and 60-6, 197.03(6) (Cum. Supp. 2014), asserting
that these statutes violated his rights under the Fourth
Amendment to the U.S. Constitution and Neb. Const, art. I,
§ 7, by criminalizing the withdrawal of consent to a
search and by aggravating the penalty for a crime for
exercising the right to withdraw his consent to a search.
district court denied Cornwell's motion to quash, and the
case proceeded to trial. Following a jury trial, Cornwell was
found guilty of driving under the influence and refusing to
submit to a chemical test. He was sentenced to 2 to 5
years' imprisonment, and his license was revoked for 15
years. He [294 Neb. ...