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State v. Pester

Supreme Court of Nebraska

October 14, 2016

State of Nebraska, appellee,
Richard Pester, appellant.

         1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion.

         2. Courts: Judgments: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. But an appellate court independently reviews questions of law in appeals from the county court.

         3. Judgments: Pleadings: 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 determinations reached by the trial court.

         4. 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 protection is a question of law that an appellate court reviews independently of the trial court's determination.

         5. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass [294 Neb. 996] 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.

         6. Constitutional Law: Search and Seizure: Warrantless Searches: Blood, Breath, and Urine Tests: Arrests. A warrantless breath test administered as a search incident to a lawful arrest for driving under the influence does not violate the Fourth Amendment's prohibition against unreasonable searches and seizures.

         7. Constitutional Law: Search and Seizure. 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 state.

         8. Arrests: Search and Seizure: Probable Cause. An arrest constitutes a seizure that must be justified by probable cause to believe that a suspect has committed or is committing a crime.

         9. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.

         10. Probable Cause: Appeal and Error. An appellate court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.

         11. Criminal Law: Motor Vehicles: Words and Phrases. Under Neb. Rev. Stat. § 60-6, 196 (Reissue 2010), being in "actual physical control" is distinct from "operating" a motor vehicle and is interpreted broadly to address the risk that a person not yet operating a motor vehicle might begin operating that vehicle with very little effort or delay.

         Appeal from the District Court for Scotts Bluff County. Randall L. Lippstreu, Judge, on appeal thereto from the County Court for Scotts Bluff County, James M. Worden, Judge.

          Bell Island, of Island & Huff, P.C. L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Matthew A. Dodd, of Dodd Law Firm, P.C, and Bradley P. Roth, of McHenry Haszard Law, for amicus curiae National College of DUI Defense.

         [294 Neb. 997] Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy. Kelch, and Funke, JJ.

          Miller-Lerman, J.


         Richard Pester appeals the decision of the district court for Scotts Bluff County in which the court affirmed his convictions following a jury trial in Scotts Bluff County Court for driving under the influence (DUI) and refusal to submit to a chemical test, both second offenses. The county court had overruled Pester's motion to quash the charge of refusal to submit to a chemical test; Pester had argued that criminalizing refusal was a violation of the constitutional rights to be free of unreasonable searches and seizures. The county court had also overruled Pester's motion to suppress evidence obtained as a result of his arrest; Pester had argued that there was not probable cause to support his arrest. On appeal, ...

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