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State v. Jasa

Supreme Court of Nebraska

September 22, 2017

State of Nebraska, appellee,
Jamos M. Jasa, appellant.

          1. 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.

         2. Administrative Law: Statutes: Appeal and Error. The meaning and interpretation of statutes and regulations are questions of law which an appellate court resolves independently of the lower court's conclusion.

         3. Constitutional Law: Search and Seizure: Investigative Stops: Arrests: Probable Cause. The Fourth Amendment guarantees the right to be free of unreasonable search and seizure. This guarantee requires that an arrest be based on probable cause and limits investigatory stops to those made upon an articulable suspicion of criminal activity.

         4. Criminal Law: Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. A traffic stop requires only that the stopping officer have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime.

         5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. If an officer has probable cause to stop a traffic violator, the stop is objectively reasonable.

         6. __:__:__:__.A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.

         7. Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct-although such [297 Neb. 823] correctness is based on a ground or reason different from that assigned by the trial court-an appellate court will affirm.

         8. Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof. The four foundational elements which the State must establish as a foundation for the admissibility of a breath test in a driving under the influence prosecution are as follows: (1) that the testing device was working properly at the time of the testing, (2) that the person administering the test was qualified and held a valid permit, (3) that the test was properly conducted under the methods stated by the Department of Health and Human Services, and (4) that all other statutes were satisfied.

         9. Statutes. Statutory language is to be given its plain and ordinary meaning.

         10. Statutes: Legislature: Intent: Appeal and Error. An appellate court will not look beyond a statute to determine the legislative intent when the words are plain, direct, or unambiguous.

         11. Appeal and Error. In appellate proceedings, the examination by the appellate court is confined to questions which have been determined by the trial court.

         Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Affirmed.

          Brad Roth, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., 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.

          Kelch, J.


         Following a jury trial, Jamos M. Jasa appeals his conviction and sentence for aggravated driving under the influence (DUI), third offense, a Class IIIA felony under Neb. Rev. Stat. §§ 60-6, 196 (Reissue 2010) and 60-6, 197.03(6) (Cum. Supp. 2014). Jasa challenges the order of the district court for Lancaster County that denied his motion to suppress the [297 Neb. 824] results of a chemical breath test. We conclude that the district court did not err in finding that law enforcement (1) had reasonable suspicion to initiate a traffic stop, (2) administered a 15-minute observation period prior to the chemical breath test in accordance with title 177 of the Nebraska Administrative Code, and (3) complied with Neb. Rev. Stat. § 60-6, 199 (Reissue 2010) by allowing access to a telephone to arrange independent testing. Therefore, we affirm.


         On February 14, 2015, Jasa was the subject of a traffic stop, which led to a DUI investigation and a chemical breath test showing an alcohol concentration of . 191 grams of alcohol per 210 liters of Jasa's breath. The State charged Jasa pursuant to §§ 60-6, 196 and 60-6, 197.03(6) with DUI, third offense, while having a breath alcohol concentration of .15 grams of alcohol per 210 liters of breath, or more.

         Prior to trial, Jasa moved to suppress his chemical breath test result on several grounds. In relevant part, he alleged (1) that law enforcement officers lacked reasonable suspicion or probable cause to stop his vehicle, making any evidence obtained as a result of the stop inadmissible; (2) that the chemical breath test was not conducted in compliance with title 177 of the Nebraska Administrative Code, because law enforcement officers failed to properly and continuously monitor him for 15 minutes prior to the breath test; and (3) that Jasa was prohibited from obtaining independent testing of his alcohol concentration, which rendered his breath test result inadmissible under § 60-6, 199.

         At the hearing on Jasa's motion to suppress, the evidence established that on February 14, 2015, shortly after midnight, Officers Kenneth Morrow and Jonathan Sears of the Lincoln Police Department were on patrol together when they received a dispatch about a vehicle that was "all over the road" at First and West O Streets in Lincoln, Nebraska. The dispatch center received the initial report from an employee [297 Neb. 825] of Lincoln Fire and Rescue (LFR). The report originated from LFR "Engine 3, " which is based at a firehouse near First and West O Streets.

         Morrow and Sears arrived in the area within a few minutes. At approximately Third and West O Streets, they saw a pickup that matched the description ...

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