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State v. Rothenberger

Supreme Court of Nebraska

September 23, 2016

State of Nebraska, appellee,
Douglas Rothenberger, appellant.

         1. Criminal Law: Courts: Appeal and Error. When deciding appeals from criminal convictions in county court, an appellate court applies the same standards of review that it applies to decide appeals from criminal convictions in district court.

         2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

         3. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.

         4. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         [294 Neb. 811] 5. Jury Instructions: Judgments: Appeal and Error. Whether the jury instructions given by a trial court are correct is a question of law. When reviewing questions of law, an appellate court resolves the questions independently of the conclusion reached by the lower court.

         6. Constitutional Law: Search and Seizure: Arrests: Probable Cause. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government. These constitutional protections mandate that an arrest be justified by probable cause to believe that a person has committed or is committing a crime.

         7. Probable Cause: Words and Phrases: Appeal and Error. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances. An appellate court determines whether probable cause existed under an objective standard of reasonableness, given all the known facts and circumstances. The probable cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act.

         8. Police Officers and Sheriffs: Arrests: Probable Cause. When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant. Probable cause for a warrantless arrest is to be evaluated by the collective information of the police engaged in a common investigation.

         9. Arrests: Probable Cause: Controlled Substances: Blood, Breath, and Urine Tests. There is no bright-line rule requiring that the full drug recognition expert protocol be administered as a prerequisite to a finding of probable cause to arrest for driving under the influence of drugs. When determining whether probable cause exists to arrest a suspect for driving under the influence of drugs, the same familiar, commonsense principles which govern all arrests apply.

         10. ___:___:___: ___ . Neither drug recognition expert certification nor a completed drug recognition expert examination is a mandatory prerequisite to forming probable cause to arrest a suspect for driving under the influence of drugs.

         11. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. If there is any evidence which [294 Neb. 812] will sustain a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law, and a verdict may not be directed.

         12. Criminal Law: Police Officers and Sheriffs: Drunk Driving: Controlled Substances: Blood, Breath, and Urine Tests. The material elements of the crime of refusal are (1) the defendant was arrested for an offense arising out of acts alleged to have been committed while he or she was driving or in actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs; (2) a peace officer had reasonable grounds to believe the defendant was driving or in actual physical control of a motor vehicle in this state while under the influence of alcohol or drugs; (3) the peace officer required the defendant to submit to a chemical test of his or her blood, breath, or urine to determine the concentration of alcohol or the presence of drugs; (4) the defendant was advised that his or her failure to submit to a chemical test of his or her blood, breath, or urine is a separate offense for which he or she could be charged; and (5) the defendant refused to submit to a chemical test as required by the peace officer.

         13. Criminal Law: Controlled Substances: Blood, Breath, and Urine Tests. Neither the type of drug suspected to be causing a person's impairment nor the ability of a chemical test to reveal the presence of a particular drug is an element of the crime of refusal.

         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.

         Petition for further review from the Court of Appeals. Pirtle, Riedmann, and Bishop, Judges, on appeal thereto from the District Court for Scotts Bluff County, Leo Dobrovolny, Judge, on appeal thereto from the County Court for Scotts Bluff County, James M. Worden, Judge.

          Bell Island, of Island & Huff, PC, L.L.O., for appellant.

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

          [294 Neb. 813] Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          Stacy, J.

         After a jury trial in county court, Douglas Rothenberger was convicted of refusal to submit to a chemical test and was sentenced to probation. On appeal, the district court affirmed, as did the Nebraska Court of Appeals.[1] On further review, we find no merit to Rothenberger's assigned errors, and we affirm.

         I. FACTS

         1. Background

         Just after midnight on June 19, 2013, a motorist called the 911 emergency dispatch service to report that a vehicle traveling on Highway 92 near Scottsbluff, Nebraska, was swerving from one edge of the highway to the other and fluctuating between 20 and 60 m.p.h. The motorist followed the vehicle until Deputy Sheriff Jared Shepard arrived.

         Shepard followed the vehicle and saw it weave back and forth and cross the centerline twice. Shepard testified the vehicle was traveling 20 to 25 m.p.h. on roads where the posted speed limit was 50 to 65 m.p.h. After following the vehicle for about three-fourths of a mile, Shepard activated the lights on his patrol car to initiate a traffic stop. The vehicle did not stop. Shepard then switched on his siren, and the vehicle pulled onto the right shoulder and stopped.

         When Shepard made contact with the driver, Rothenberger, Rothenberger's speech was slow and slurred. Rothenberger appeared confused and had trouble getting his window down and opening his vehicle door. Rothenberger looked in his wallet for 3 to 4 minutes before providing Shepard with his driver's license. He was not able to provide current proof [294 Neb. 814] of insurance. Dispatch advised Shepard that Rothenberger's license was suspended. However, the parties stipulated at trial that Rothenberger's Nebraska driver's license was actually expired, rather than suspended, and that he had a valid Texas license.

         Shepard asked Rothenberger to step out of the vehicle. Rothenberger had difficulty standing and maintaining his balance without holding onto the vehicle. Shepard did not smell alcohol on Rothenberger's breath, but saw that his eyes were watery. Rothenberger was asked to perform standardized field sobriety tests. During the nine-step walk-and-turn test, Rothenberger could not maintain his balance and staggered into approaching traffic, so Shepard discontinued the test for safety reasons. During the one-legged stand test, Rothenberger was unable to maintain his balance or keep his foot raised for more than 2 seconds. His performance on the tests indicated impairment. Shepard administered a preliminary breath test at the scene, which was negative for alcohol. Shepard asked Rothenberger whether he had taken any medications, and he admitted taking Suboxone within the previous 24 hours. Rothenberger was asked whether he had any medical conditions, and he did not indicate he was suffering from any illness or injury. Rothenberger did not request medical help. Shepard testified that based on his investigation, it was his opinion that Rothenberger was impaired, so he arrested him on suspicion of driving under the influence of alcohol or drugs and driving under suspension and transported him to the Scotts Bluff County sheriff's office for a drug recognition expert (DRE) examination.

         Sgt. Jeff Chitwood was dispatched to the traffic stop as backup. Chitwood testified that when he arrived, Shepard was talking to Rothenberger outside the vehicle. Chitwood testified that throughout the contact, Rothenberger had to hold onto his vehicle or the patrol car to keep his balance. Chitwood heard Rothenberger tell Shepard he had taken Suboxone "at 10 a.m. earlier that same day." Chitwood watched while [294 Neb. 815] Shepard took Rothenberger through the standard field sobriety tests. Chitwood testified that during the walk-and-turn test. Rothenberger "wandered off into the traffic lane, " and that at another point, Shepard had to catch Rothenberger to keep him from falling. Chitwood asked Rothenberger questions in an effort "to ascertain if we had an impairment case or a medical case." Chitwood testified that based on Rothenberger's answers, there was "never any indication that we had a medical case" and "it was obvious we had an impairment case." Chitwood testified that due to Rothenberger's level of impairment, he was arrested and placed in Shepard's patrol car to be transported to the sheriff's station.

         Once at the sheriff's station, Rothenberger was turned over to Sgt. Mark Bliss. Bliss had completed training as a DRE and was also a DRE instructor. Bliss performed a DRE examination on Rothenberger and again administered standardized field sobriety tests. According to Bliss, Rothenberger either failed the standardized field sobriety tests or was unable to complete them for safety reasons because he kept falling. Bliss described Rothenberger as cooperative and polite, but noted he appeared "sedated" and was unable to maintain his balance throughout the investigation. Bliss examined Rothenberger's pupil size, because unequal size could indicate a possible head injury; he determined Rothenberg's pupils were equal in size. After Rothenberger waived his Miranda rights, Bliss asked him whether he had taken any medications. Rothenberger admitted "he'd been taking Suboxone" and had taken "his regular dose" at approximately 10 a.m. As the final step in his investigation, Bliss asked Rothenberger to submit to a chemical test for drugs. Bliss read Rothenberger the postarrest chemical advisement form, which provided in pertinent part:

You are under arrest for operating or being in actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs. Pursuant to law, I am requiring you to submit to a chemical test or tests of [294 Neb. 816] your blood, breath, or urine to determine the concentration of alcohol or drugs in your blood, breath, or urine. Refusal to submit to such test or tests is a separate crime for which you may be charged.
I hereby direct a test of your . . . urine to determine the . . . drug content.

         Rothenberger refused to sign the advisement form, and he refused to submit to a chemical test of his urine. A copy of the postarrest chemical advisement form was received into evidence.

         2. Motion to Quash

         Rothenberger was charged with two counts: driving under the influence of alcohol or drugs, second offense, and refusal to submit to a chemical test, first offense. He moved to quash the refusal charge on the ground that Nebraska's refusal statute was unconstitutional under both the U.S. Constitution and the Nebraska Constitution. The county court overruled the motion, and Rothenberger entered not guilty pleas to both counts. For the sake of completeness, we note that Rothenberger has not assigned error to the county court's ruling on the motion to quash and does not argue on appeal that Nebraska's refusal statute is unconstitutional. As such, although we are aware of the U.S. Supreme Court's recent decision in Birchfield v. North Dakota, [2] the constitutionality of Nebraska's refusal statute is not an issue before us in this appeal.

         3. Motion to Suppress

         Rothenberger also moved to suppress evidence on the ground his arrest was not supported by probable cause. He argued Shepard and Chitwood were not DRE-certified [294 Neb. 817] examiners, and so could not form the requisite probable cause to arrest him for driving under the influence of drugs. Rothenberger further argued that because there was no probable cause to arrest, both the evidence later obtained through testing by Bliss and the evidence that Rothenberger refused to submit to a chemical test of his urine should also be suppressed. The county court denied the motion after conducting an evidentiary hearing.

         4. Jury Trial

         At the commencement of trial, Rothenberger renewed his motion to suppress and was given a continuing objection based on that motion. Rothenberger also made oral motions in limine to preclude the State from offering (1) any testimony from Bliss about Rothenberger's performance on the DRE evaluation or Bliss' opinion regarding the cause of Rothenberger's impairment; (2) evidence Rothenberger told officers he was taking Suboxone to manage a prior addiction to Vicodin; and (3) evidence that when he was stopped, Rothenberger had a pill bottle containing two unidentified pills. The State ...

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