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State v. Hoerle

Supreme Court of Nebraska

September 22, 2017

State of Nebraska, appellee,
v.
Jared S. Hoerle, appellant.

         1. 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.

         2. Search and Seizure. Application of the good faith exception to the exclusionary rule is a question of law.

         3. Judgments: Appeal and Error. On a question of law, an appellate court reaches a conclusion independent of the court below.

         4. 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.

         5. Constitutional Law: Search and Seizure: Evidence. The Fourth Amendment does not expressly preclude the use of evidence obtained in violation of its commands.

         6. __: __:__. 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.

         7. __:__:__.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.

         9. 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.

         [297 Neb. 841] Appeal from the District Court for Lancaster County: Jodi Nelson, Judge. Affirmed.

          Mark E. Rappl for appellant.

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

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Cassel, J.

         INTRODUCTION

         One day 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.[1] 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.

         BACKGROUND

         A 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.

         The 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.

         The following day, the U.S. Supreme Court released its decision in Birchfield v. North Dakota[2] 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."[3] 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."[4]

         Hoerle 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.

         The 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.

         After 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.

         ASSIGNMENT OF ERROR

         Hoerle assigns that the district court abused its discretion by denying his motion for new trial.

         STANDARD OF REVIEW

         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.[5] Application of the good faith exception to the exclusionary rule is a question of law.[6] On a question of law, an appellate court reaches a conclusion independent of the court below.[7]

          [297 Neb. 844] ANALYSIS

         BIRCHFIELD V. NORTH DAKOTA

         We 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 ...


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