Criminal Law: Motions for New Trial: Appeal and
Error. In a criminal case, a motion for new trial is
addressed to the discretion of the trial court, and unless an
abuse of discretion is shown, the trial court's
determination will not be disturbed.
Search and Seizure. Application of the good
faith exception to the exclusionary rule is a question of
Judgments: Appeal and Error. On a question
of law, an appellate court reaches a conclusion independent
of the court below.
Drunk Driving: Blood, Breath, and Urine Tests. A
court must consider the totality of the circumstances to
determine whether a driver's consent to a blood test was
freely and voluntarily given.
Constitutional Law: Search and Seizure:
Evidence. The Fourth Amendment does not expressly
preclude the use of evidence obtained in violation of its
__: __:__. The exclusionary rule operates as a judicially
created remedy designed to safeguard Fourth Amendment rights
generally through its deterrent effect, rather than a
personal constitutional right of the party aggrieved.
__:__:__.A Fourth Amendment violation does not necessarily
mean that the exclusionary rule applies. 8. Courts:
Search and Seizure. Because the exclusionary rule
should not be applied to objectively reasonable law
enforcement activity, the U.S. Supreme Court created a good
faith exception to the rule.
Constitutional Law: Courts: Search and Seizure:
Police Officers and Sheriffs: Evidence. A court may
decline to apply the exclusionary rule when evidence is
obtained pursuant to an officer's objective and
reasonable reliance on a law that is not clearly
unconstitutional at the time.
Neb. 841] Appeal from the District Court for Lancaster
County: Jodi Nelson, Judge. Affirmed.
E. Rappl for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
after Jared S. Hoerle's conviction for driving under the
influence (DUI), the U.S. Supreme Court held that a blood
test may not be administered without a warrant as a search
incident to an arrest for DUI. Hoerle moved for a new trial,
arguing that it was error to admit the result of a
warrantless test of his blood. The district court overruled
the motion, and Hoerle appeals. Because we determine that the
good faith exception to the exclusionary rule applies, we
affirm the court's denial of a new trial.
motorist called the 911 emergency dispatch service after
witnessing Hoerle wreck his motorcycle. An officer responding
to the scene observed clues that Hoerle may be impaired by
alcohol, and Hoerle admitted consuming alcoholic beverages.
Based on the result of a preliminary breath test, the officer
determined that he needed Hoerle to submit to a chemical
test. A phlebotomist at a hospital obtained blood from Hoerle
at the officer's request.
State charged Hoerle with "DUI- .15 (2 prior
convictions)." At trial, the parties stipulated that the
blood test [297 Neb. 842] showed a blood alcohol
concentration of .195 gram of alcohol per 100 milliliters of
blood. A jury returned a verdict finding Hoerle guilty of DUI
and found that the State proved Hoerle had a concentration of
.150 of 1 gram or more by weight of alcohol per 100
milliliters of blood. The district court proceeded with an
enhancement hearing and found Hoerle guilty of DUI over .15
with two prior convictions.
following day, the U.S. Supreme Court released its decision
in Birchfield v. North Dakota In that case, the
Court considered "whether motorists lawfully arrested
for drunk driving may be convicted of a crime or otherwise
penalized for refusing to take a warrantless test measuring
the alcohol in their bloodstream." The Court held
that the Fourth Amendment permits a warrantless breath test
as a search incident to a lawful arrest for drunk driving,
but does not allow a warrantless blood test as a search
incident to arrest. The Court also touched on whether a blood
test is permissible based on a driver's statutory implied
consent and stated that "motorists cannot be deemed to
have consented to submit to a blood test on pain of
committing a criminal offense."
timely moved for a new trial. He detailed that the officer
(1) acquired his blood sample without a warrant, (2) stated
Hoerle was required to submit to a chemical blood test, and
(3) told Hoerle refusal to submit to such test was a separate
crime for which Hoerle may be charged. Hoerle claimed that in
light of the new rule of constitutional law announced in
Birchfield, the introduction of evidence regarding
his blood alcohol constituted an error of law and the guilty
verdict was not sustained by sufficient admissible evidence.
district court held a hearing on the motion for new trial at
which the arresting officer testified. The officer testified
[297 Neb. 843] that he was denied permission to use the
breath-testing facility at the jail due to concerns as to
whether Hoerle was "fit for confinement" as a
result of the accident. The officer then transported Hoerle
to a hospital so that Hoerle's medical condition could be
checked. Because the officer was already at the hospital and
in order to preserve as much evidence as possible, he decided
"to get everything done at the hospital, one shot."
The officer read Hoerle the postarrest chemical test
advisement form which advised that "refusal to submit to
[the chemical test] is a separate crime for which you may be
charged." The officer testified that Hoerle cooperated
with his request for a blood sample and did not resist in any
way. The officer did not attempt to obtain a warrant for the
blood draw, because his knowledge at that time was that a
warrant was not needed. The court overruled the motion.
the district court imposed a sentence, Hoerle filed this
appeal. We granted the State's petition to bypass review
by the Nebraska Court of Appeals.
assigns that the district court abused its discretion by
denying his motion for new trial.
criminal case, a motion for new trial is addressed to the
discretion of the trial court, and unless an abuse of
discretion is shown, the trial court's determination will
not be disturbed. Application of the good faith exception to
the exclusionary rule is a question of law. On a question of
law, an appellate court reaches a conclusion independent of
the court below.
Neb. 844] ANALYSIS
V. NORTH DAKOTA
begin with a brief review of Birchfield. The opinion
addressed the consolidated cases of three individuals: one
who refused a blood test, another who refused a breath test,
and a third who submitted to a blood test after being told
that the law required submission. Because Hoerle similarly
submitted to a blood test after being ...