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State v. Cornwell

Supreme Court of Nebraska

September 16, 2016

State of Nebraska, Appellee,
v.
Chancey A. Cornwell, Appellant.

         1. 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.

         2. 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 challenge.

         3. ___:___. 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.

         4. 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.

         5. 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 as applied.

         6. 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.

         Appeal from the District Court for Lancaster County: Stephanie F. Stacy, Judge.

          David J. Tarrell for appellant.

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

         [294 Neb. 800] Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and Funke, JJ.

          HEAVICAN, C.J.

         INTRODUCTION

         Chancey 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.

         FACTUAL BACKGROUND

         On 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.”

         Cornwell 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.

         The 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. ...


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