Deficient sample, incomplete test

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State v. McIntyre, 290 Neb. 1021, ___ N.W.2d ___ (2015)

REFERENCE: Breath testing; motion to quash

FACTS: After being arrested for DUI, the defendant gave a breath sample on a Datamaster. The device timed out, and the Test Record Card printed “DEFICIENT SAMPLE, INCOMPLETE TEST” and also that the “VALUE PRINTED [.218] WAS HIGHEST OBTAINED.” The defendant moved in limine to keep the .218 result out of evidence, arguing it was irrelevant, or unfairly prejudicial. This motion was overruled. The defendant also attempted to force the State to elect whether to charge the defendant with a DUI aggravated by a breath test result higher than .15, or a DUI aggravated by a refusal. The trial court declined to do so, even though she found the theories “logically inconsistent.”

ISSUE: (1) Whether evidence of the highest value obtained, when the Datamaster indicates a deficient sample, is admissible; (2) whether the State must elect, in such a situation, whether to charge a DUI aggravated by a breath test result higher than .15, or a DUI aggravated by a refusal.

HELD: (1) “Evidence of a chemical breath test that records a deficient sample is admissible if the State lays sufficient foundation.” Id. at 1023. The Supreme Court found that the State had laid sufficient foundation for both the admission of the evidence of a deficient sample, as well as for admission of the highest value obtained.

The Rules and Regulations of the Department of Health and Human Services provide in Section 002.01 that the result of a deficient sample is not a completed test, cannot be recorded on the appropriate checklist, and is considered a refusal. But § 002.01B specifically provides that a deficient sample “is scientifically probative up to the amount indicated by the testing device at the time the breath testing procedure stopped.” Thus the Court noted that the DHHS regulations “obviously created some tension” and “the apparently Janus-faced regulation seems to both accept and reject the same thing.” But of course the Court could not let some “bad faith test takers” to “game the system” by blowing hard enough to get the machine to print “DEFICIENT SAMPLE” and claim a defense to a refusal charge, and still not face a charge of being in excess of the legal limit if the machine printed a value over that limit. So rather than take the opportunity to force the State to draft clear, concise, non-contradictory regulations, it allowed the State have its cake and eat it too, despite what the Court described as “textual friction” in the regulations.

(1) The Supreme Court held that the proper way to attempt to force the State to elect which theory to prosecute was through a motion to quash. Since the defendant did not file such a motion, the issue was deemed to be waived.

State v. Planck, 289 Neb. 510, 856 N.W. 2d 112 (2014)

REFERENCE: Entrapment by estoppel

FACTS: The defendant’s license was impounded for 60 days after she was convicted of reckless driving. Her license was returned to her after the 60 days by the court. However, this conviction caused the DMV to revoke her on points. She was stopped for a traffic violation in a different county, and showed the officer the license that had been returned to her. A records check showed that she was revoked by the DMV, and she was charged with driving during revocation. She asked for a jury instruction for entrapment by estoppel. The instruction was not given, she was convicted, and appealed.
ISSUE: Whether the trial court erred in refusing to give an entrapment by estoppel instruction.
HELD: The giving of the instruction was not warranted because the defendant presented insufficient evidence that an authorized government official made an affirmative statement that she could drive. Such an affirmative statement is one of the elements that the defendant must present evidence of in order to be granted the instruction, the others being that she acted in good faith, that she relied upon such an affirmative statement, and that her reliance on the statement was reasonable.
State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014)
REFERENCE: Rules of evidence; search and seizure – checkpoint
FACTS: In this DUI 2d case, the defendant argued that the Rules of Evidence should apply at a hearing on a motion to suppress. The county court disagreed, and the district court affirmed the county court. The defendant appealed, and the Supreme Court snagged the case under its docket regulation power.

The defendant argued that the checkpoint operated by the Nebraska State Patrol, which involved stopping every vehicle, was constitutionally invalid. The county court disagreed, and again the district court affirmed.

ISSUES: (1) Whether the Rules of Evidence apply at a hearing on a motion to suppress; and (2) whether this particular checkpoint was constitutionally valid.
HELD: (1) Relying upon Neb. Rev. Stat. §27-104, §27-1101(4)(b), and State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011), the Supreme Court held that a hearing on a motion to suppress was a “preliminary hearing,” and thus the Rules of Evidence did not apply. There is no discussion of what evidence would have been excluded had the Rules of Evidence been applied, or of what difference the application of the Rules of Evidence would have made in the outcome of the hearing on the motion to suppress.

(2) A checkpoint must be based upon a written policy of the law enforcement agency conducting it, it must be established for a permissible purpose, it must involve only minimal intrusion, and it must not be operated according to the unfettered discretion of law enforcement officers. Unlike the leading Nebraska case of State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986), where officers with no rank higher than sergeant set up arbitrary, unplanned, standardless checkpoints, the State Patrol in this case met the requirements for a valid checkpoint. This included following a plan approved by a supervisor which established the date, time, location, and duration of the checkpoint, as well as the pattern for placement of signs and flares. In operating the checkpoint, the officers did not deviate from the plan. There was no evidence of the officers exercising “unfettered discretion” in implementing the checkpoint.

State v. Rodriguez, 288 Neb. 878, 852 N.W. 2d 705 (2014)

REFERENCE: Search and seizure

FACTS: An anonymous caller to 911 claimed to have been pushed out of a car, and described the vehicle. An officer in the area drove by the location where the caller said the incident had happened, saw no one, and then later saw a vehicle matching the description, activated emergency lights after the vehicle came to a stop at the side of the road. A subsequent DUI investigation resulted in the defendant’s arrest and eventual conviction for DUI 3d aggravated.

The State also charged the defendant with possession of methamphetamine and possession of cocaine. The prosecutor knew in advance of trial that no methamphetamine had been found during the investigation, but did not dismiss the charge and in fact mentioned methamphetamine during voir dire. During opening statement, the prosecutor admitted he could not prove that the defendant possessed methamphetamine. Defense counsel moved for a mistrial, which was overruled. While the Court of Appeals “disapproved” the prosecutor’s conduct, it nonetheless affirmed the district court’s ruling.

ISSUE: (1) Whether the anonymous tip in this case created a reasonable suspicion of criminal activity that justified the contact of the defendant by the officer; and (2) whether a mistrial should have been declared when the prosecutor failed to dismiss, prior to trial, a charge he knew he could not prove.

HELD: (1) The Supreme Court analyzed the contact of the defendant as a “second tier” seizure (i.e. a traffic stop) requiring reasonable suspicion, because the prosecutor conceded on appeal that this was not a “first tier” encounter, which triggers no Fourth Amendment protection. It cited Navarette v. California, ___U.S.___, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), where the United States Supreme Court declared that whether an anonymous tips passes constitutional muster depends upon the following factors: (1) eyewitness knowledge, i.e., the caller necessarily claimed to have personally observed the alleged dangerous driving; (2) contemporaneous reporting, i.e., the caller reported the incident soon after it occurred; and (3) the caller's use of the 911 emergency dispatch system, which system allows for identifying and tracing callers, thus providing some safeguard against false reports. The Nebraska Supreme Court found those three factors to be present, but noted two important distinctions that led it to conclude that the anonymous tipster was not reliable. First, the officer went to the area where the alleged incident was supposed to have taken place, and saw no one. Second, a key factor in Navarette was the conclusion of the majority was that the reckless driving reported by the caller in that case gave rise to a reasonable suspicion that the driver was drunk. In this case, the caller reported an isolated incident, not an ongoing crime. The Nebraska Supreme Court found that there was no reasonable suspicion justifying the seizure, and reversed.

(2) The Nebraska Supreme Court approved the Court of Appeals’ disapproval of the prosecutor’s conduct in failing to dismiss the meth charge in advance of trial. But since the case was being reversed anyway, the Court declined to determine whether a mistrial should have been granted.

State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (Neb. 2014)
REFERENCE: Search and seizure
FACTS: The defendant pulled out of a parking space, failing to yield to another vehicle, and was thus involved in an accident. He gave the other driver the information required by law in such circumstances, and left. The other driver called police, and the officer responding called the defendant and requested that he return to the scene, which the defendant did. The defendant unsuccessfully argued in the county court that the phone call constituted a seizure subject to Fourth Amendment protection. The district court affirmed.
ISSUE: Whether the phone call and subsequent return to the scene by the defendant was a seizure subject to Fourth Amendment protection.
HELD: The factual finding of the county court was that this was not a seizure, since the defendant voluntarily returned to the scene of the accident. Despite the evidence that the officer told the defendant that he would otherwise be cited for leaving the scene, the Court of Appeals found that the defendant’s testimony was essentially equivocal on whether the defendant felt compelled to return to the scene. The Court of Appeals reviewed the factual findings for clear error, as it is obliged to do, and found none
NOTE: In reviewing ruling on motions to suppress, there is 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.”

Id. at 288 Neb. 237
State v. Rohde, 22 Neb. App. 926, ___ N.W.2d ___ (2015)
REFERENCE: Search and seizure – community caretaking exception
FACTS: The officer saw a passenger stick her head and torso out the “moonroof” of an automobile and wave her arms. Thinking this action was unsafe and illegal, and that she may have been signaling to him, the officer stopped the vehicle. A DUI investigation ensued, and the defendant was ultimately convicted of DUI after his motion to suppress was overruled on the grounds that the officer’s action was in the “general nature of checking welfare.” and thus justified.
ISSUE: (1) Whether the facts of this case justified the officer stopping the automobile under the community caretaking exception, and (2) whether a community caretaking exception to the Fourth Amendment applies to a passenger in a vehicle.
HELD: (1) Using “totality of the circumstances” and “reasonableness” standards, the Court of Appeals found the officer’s action in checking on the welfare of the passenger was justified.

(2) Since there was no Nebraska case on point, the Court of Appeals looked to other jurisdictions, both pro and con, and determined that the community caretaking exception should apply to occupants of vehicles as well as to drivers.

State v. Minnick, 22 Neb. App. 907, ___ N.W.2d ___ (2015)
REFERENCE: Sentencing
FACTS: On a fourth offense DUI, a Class IIIA felony, the district judge sentenced the defendant to 180 days jail to be served at the Department of Correctional Services. By statute, any sentence of less than one year cannot be served at DCS. The judge realized his mistake, brought the defendant back into court later in the day, and gave the defendant the option of 180 days in county jail or one year at DCS with the promise of treatment. The defendant chose Door #2. Apparently realizing his choice was ill-advised, he appealed, claiming the sentence originally ordered, since the 180 days portion of it was valid, should have been implemented.
ISSUE: Whether a sentence which is valid only in part, is void.
HELD: The Court of Appeals stated that if the valid portion of the sentence can be served despite the invalidity of the remainder of it, then the sentence is not void. Here, the valid portion of the sentence could not be served as ordered, because the judge ordered it served at DCS. The sentence was therefore void, and there was nothing to stop the judge from bringing the defendant back to impose a valid sentence, even if it increased the term of imprisonment.
State v. Brooks, 22 Neb. App. 598, 858 N.W.2d 267 (2014)
REFERENCE: Enhancement
FACTS: The defendant argued that two prior DUI convictions used to enhance his refusal conviction to a felony should not have been used because they were too old, citing Neb. Rev. Stat. §60-6,197.02(3), which provides that the trial court must consider mitigating facts regarding the prior convictions.
ISSUE: Whether the statutory language in §60-6,197.02(3) could be construed to mean that a trial court could rule that an otherwise valid prior conviction cannot be used to enhance penalty based on mitigating facts presented by the defendant.
HELD: The plain language of the statute is interpreted to mean that the court can use the mitigating facts to determine the appropriate sentence to be imposed on the defendant, but cannot be used to invalidate an otherwise valid prior conviction.
State v. Watts, 22 Neb.App. 505, 856 N.W.2d 151 (2014)
REFERENCE: Enhancement
FACTS: This was a consolidated appeal of two cases. What the defendant was trying to do was invalidate a prior DUI conviction for purposes of enhancement by filing an appeal years after the conviction, based on the fact that the orders in the court file were not file stamped. The defendant got the court to file stamp the orders, and then filed a notice of appeal, but failed to pay the fees for the cost of the transcript. Because he failed to do so, by court rule the appeal was dismissed. He appealed, and the Court of Appeals affirmed the dismissal.

In the second case, the defendant argued that the same conviction was invalid for purposes of enhancement because it was not a final judgment due to the absence of the file stamps.

ISSUE: (1) Whether fees for a transcript need to be filed to perfect an appeal; and (2) whether the lack of file stamps on orders from a prior conviction keeps the conviction from being a final judgment and thus not valid for enhancement, when no appeal had been taken from the prior conviction at the time the present offense was committed.
HELD: (1) Fees for the transcript need to be filed before an appeal is perfected.

(2) The Court of Appeals also held as follows:

“Reading State v. Estes, [238 Neb. 692, 472 N.W.2d 214 (1991)], and State v. Macek, 278 Neb. 967, 774 N.W.2d 749 (2009), together, we conclude that Watts' 2005 DUI conviction is valid for purposes of enhancement, because no appeal had been taken at the time the present offense was committed and because any attempt to attack the prior conviction based on the lack of a file stamp would have been an impermissible collateral attack, since there was no appeal pending at that time. Thus, the district court was correct in enhancing Watts' conviction to a third offense.”

Id. at 22 Neb. App. 512

Hoppens v. Nebraska Department of Motor Vehicles, 288 Neb. 857, 852 N.W.2d 331 (2014)

REFERENCE: Sworn report
FACTS: The petitioner was found in his motor vehicle in the parking lot of the Omaha Police Department. He showed signs of intoxication, and refused a chemical test. He argued that since the arresting officer’s sworn report failed to state that vehicle was on property that was open to public access, the DMV lacked jurisdiction to revoke his license.
ISSUE: Whether the sworn report submitted by the arresting officer needs to state that the arrestee’s vehicle was on property open to public access.
HELD: “The reasons for arrest that must be included in a sworn report are those facts supporting the officer's suspicion that the individual arrested drove or physically controlled a motor vehicle while under the influence of alcohol or drugs.”

Id. at 288 Neb. 865-866.

The sworn report does not need to assert that the arrestee drove on a public road or on property open to public access.

State v. Armagost, 22 Neb.App. 513, 856 N.W.2d 156 (2014)
In this case, the defendant was convicted of the felony of operating a motor vehicle in a willful reckless manner to avoid arrest. The Court of Appeals noted that recently the Legislature amended Neb. Rev. Stat. §28-905 to prohibit operating a motor vehicle to avoid arrest or citation. Previously, the statute only prohibited operating a motor vehicle to avoid arrest.

The trial court failed to instruct the jury on all the essential elements of the offense, leaving out the element of “attempt to arrest or cite the defendant.” The Court of Appeals subjected this mistake to harmless error review. The Court of Appeals stated:

“Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. [Citation omitted]. Where a court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error, it should not find the error harmless.” [Citation omitted].

The Court of Appeals found the element was implicit in the instructions given, and found the mistake was harmless error.

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