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.
Trial: Investigative Stops: Warrantless Searches: Appeal and
Error. The ultimate determinations of reasonable suspicion to
conduct an investigatory stop and probable cause to perform a
warrantless search are reviewed de novo, and findings of fact
are reviewed for clear error, giving due weight to the
inferences drawn from those facts by the trial judge.
Pleadings. Issues regarding the grant or denial of a plea in
bar are questions of law. 4. Judgments: Appeal and Error. On
a question of law, an appellate court reaches a conclusion
independent of the court below.
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.
Constitutional Law: Statutes: Judgments: Appeal and Error.
The constitutionality and construction of a statute are
questions of law, regarding which an appellate court is
obligated to reach conclusions independent of those reached
by the court below.
Constitutional Law: Statutes: Pleadings. When a statute is
utilized by the court in sentencing a defendant, the
defendant is not required [295 Neb. 478] to challenge the
constitutionality of this statute in his or her motion to
Constitutional Law: Criminal Law: Statutes. The
void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and
Judgments: Statutes: Appeal and Error. Statutory language is
to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the
meaning of statutory words which are plain, direct, and
Constitutional Law: Statutes. The test for determining
whether a statute is vague is whether it forbids or requires
the doing of an act in terms so vague that persons of common
intelligence must necessarily guess at its meaning and may
differ as to its application.
__:__. A statute will not be deemed vague if it uses ordinary
terms which find adequate interpretation in common usage and
Process. The Due Process Clause applies when government
action deprives a person of liberty or property; accordingly,
when there is a claimed denial of due process, a court must
consider the nature of the individual's claimed interest.
Criminal Law: Due Process: Notice. In the context of criminal
proceedings, due process generally requires the defendant be
given notice and an adequate opportunity to defend himself or
Sentences: Due Process. Due process requires that a
sentencing judge have relevant information as the basis for a
sentence imposed on a convicted defendant.
Sentences: Evidence. In a sentencing hearing, a court
generally has broad discretion concerning the source of
information and the type of information to be considered.
Sentences: Evidence: Presentence Reports. A sentencing judge
may consider relevant information contained in a presentence
report on the defendant to determine an appropriate sentence
within the statutorily authorized penalty, punishment, or
disposition applicable to the crime for which the defendant
has been convicted.
Prior Convictions: Records. A certified or duly authenticated
copy of the former judgment, from any court in which such
judgment was had, for any of such crimes formerly committed
by the party so charged, shall be competent and prima facie
evidence of such former judgment.
from the District Court for Lancaster County: Susan I.
Strong, Judge. Affirmed.
Neb. 479] Joe Nigro, Lancaster County Public Defender, and
Nathan Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and
Funke, JJ., and Inbody, Judge.
Arizola was found guilty of refusal of a chemical test, with
two prior convictions, a Class IIIA felony under Neb. Rev.
Stat. §§ 60-6, 197 (Cum. Supp. 2016) and 60-6,
197.03(6) (Cum. Supp. 2014). Arizola filed various pretrial
and posttrial motions, including a motion to suppress, a
motion to quash, a motion for plea in abatement, a second
motion to quash, and a motion for plea in bar. All were
primary issues on appeal are Arizola's contention that
the traffic stop was conducted without reasonable suspicion
and hence should be suppressed and that Neb. Rev. Stat.
§ 60-6, 197.09 (Cum. Supp. 2016) and related statutes
are unconstitutional because they are void for vagueness.
Arizola also argues that he was denied due process when he
was denied probation under § 60-6, 197.09, because the
lower court failed to give him a meaningful opportunity to
challenge whether he committed another driving under the
influence (DUI) offense for which he was participating in
criminal proceedings when the present violation was
committed. This appeal is a companion case to State v.
Wagner. We affirm.
18, 2014, at approximately 11:46 p.m., Officer Joseph
Villamonte of the Lincoln Police Department observed [295
Neb. 480] a vehicle driving westbound in the 3600 block of
Adams Street. Villamonte ran the license plate number through
the police department's information system to check for
suspension or warrants. The license plate was registered to
Arizola, who had been cited while driving the vehicle in
2013. The police report did not indicate the reason for this
citation, but the record otherwise shows that Arizola was
cited in 2013 for improper registration and for violating the
speed limit. The system also indicated that Arizola's
operator's license had been revoked. Villamonte testified
that he pulled his cruiser alongside the passenger side of
the vehicle at a stoplight and positively identified Arizola
as the driver from his "book-in" and
"DMV" photographs contained in the system.
then initiated a traffic stop of Arizola's vehicle. He
informed Arizola of the reason for the stop and requested
identification. Arizola provided a Nebraska identification
card. After Villamonte received identification from Arizola,
he ran further checks on Arizola through the system.
Villamonte checked Arizola's operator's license
status and discovered that Arizola had two prior DUI
convictions from 2002 and 2008, multiple convictions for
driving under suspension, and a failure to appear conviction.
asked Arizola to step out of the vehicle and proceeded to
conduct a search of Arizola's pockets. Arizola smelled of
alcohol, had watery and bloodshot eyes, and made statements
that caused Villamonte to believe Arizola was impaired.
Another officer who had arrived at the scene observed an open
container of beer with a small amount of alcohol in it on the
driver's side floorboard of Arizola's vehicle. A
search was then conducted of the vehicle. The beer bottle was
cool to the touch. A review of the record indicates that the
beer bottle was the only item seized during the stop.
took Arizola into custody for driving under a revoked license
and transported Arizola to the police station. Upon arrival
at the police station, Arizola was advised that he [295 Neb.
481] would also be processed for a DUI. Villamonte requested
that Arizola take a breath test, but Arizola refused.
Criminal Charges and Pretrial Motions
August 22, 2014, Arizola was charged under Neb. Rev. Stat.
§ 60-6, 196 (Reissue 2010) and § 60-6, 197.03(6)
with DUI with refusal of a chemical test, with two prior
convictions, a Class IIIA felony. The two prior convictions
included to enhance the sentence were a DUI on or about July
13, 2007, and another occurring on or about October 20, 2001.
December 3, 2014, Arizola filed a motion to suppress his
statements, the stop, and any evidence seized from that stop.
Arizola alleged that the officers lacked probable cause or a
reasonable articulable suspicion to stop his vehicle and
detain him, and thus violated his rights under the 4th, 5th,
6th, and 14th Amendments to the U.S. Constitution and under
Neb. Const, art. I, §§ 7 and 12.
February 20, 2015, the State filed an amended information.
The amended information charged Arizola with refusal with two
prior convictions, a Class IIIA felony under §§
60-6, 197 and 60-6, 197.03(6). Because the amended
information charged a new crime-specifically § 60-6,
197-the court held a preliminary hearing. At that hearing,
Villamonte testified and the State offered evidence of
Arizola's two prior DUI convictions, as well as a copy of
his driver's abstract. After the hearing, the court found
there was probable cause to believe that Arizola committed
the crime of refusal with two prior convictions.
March 25, 2015, Arizola filed a plea in abatement alleging
that there was insufficient evidence adduced at the
preliminary hearing to warrant a finding of probable cause of
the felony charge of refusal of a chemical test with two
prior convictions. On the same date, Arizola filed a motion
to quash, alleging issues relating to the enhancement of his
sentence and conviction for third-offense DUI.
Neb. 482] On June 12, 2015, the district court denied
Arizola's plea in abatement, because there was probable
cause to believe that a crime had been committed and that
Arizola had committed the crime. In addition, the district
court overruled Arizola's motion to quash, because the
issue was premature. The court reasoned that a motion to
quash for enhancement issues is not ripe until there is a
conviction to which the enhancement should apply.
August 31, 2015, the district court held a hearing on
Arizola's motion to suppress. At the hearing, Villamonte
testified that when he works patrol, he actively runs license
plate numbers through the information system "to
identify registration violations, wanted vehicles or
called an investigator for the Lancaster County public
defender's office who had investigated, under similar
conditions, whether it was possible to positively identify
the driver of Arizola's vehicle through the passenger
window of a vehicle alongside it. The investigator testified
that due to the window tinting on Arizola's vehicle and
the lighting conditions on the street at night, he was unable
to positively identify the driver in Arizola's vehicle.
district court overruled Arizola's motion to suppress,
because the traffic stop was not an illegal seizure and the
search incident to the traffic stop and arrest was lawful.
The court reasoned that once Villamonte confirmed it was
Arizola driving the vehicle and that Arizola's license
was revoked, Villamonte had probable cause to arrest him. And
once there was a valid arrest, the search of Arizola's
person and vehicle incident to that arrest was valid because
it was limited to the area within Arizola's
'"immediate control.'" The court also held
that Arizola's statements were voluntary and admissible
because there was "no force, no threat of force or any
type of coercion used by the officers to elicit responses to
their questions during the stop."
November 25, 2015, following a bench trial on stipulated
facts, Arizola was found guilty of refusal of a chemical ...