State v. McGuire

• Decision Date: 16 June 2020
• Docket Number: No. A-19-693.,A-19-693.
• Citation: 28 Neb.App. 516,947 N.W.2d 118
• Parties: STATE of Nebraska, appellee, v. Jason H. MCGUIRE, appellant.
• Court: Nebraska Court of Appeals

28 Neb.App. 516

947 N.W.2d 118

STATE of Nebraska, appellee,

v.Jason H. MCGUIRE, appellant.

No. A-19-693.

Court of Appeals of Nebraska.

Filed June 16, 2020.

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, Lincoln, for appellee.

Moore, Chief Judge, and Riedmann and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

Jason H. McGuire appeals his jury conviction for aggravated driving under the influence (DUI), third offense. McGuire argues that the Lancaster County District Court erred in overruling his objections to the admission of certain documents and test results offered in connection with the DataMaster breath testing device used to test McGuire's breath for alcohol at the time of his arrest and in denying his motion for a directed verdict. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

In August 2018, McGuire was charged with DUI with a breath alcohol content greater than .15, third offense. A jury trial was held on May 9 and 10, 2019, with testimony adduced from Lancaster County sheriff's deputy Casey Dahlke and Lincoln police investigator Grant Powell.

1. DAHLKE

At trial, Dahlke testified that on April 6, 2018, he observed McGuire's swerving his vehicle while driving. After stopping McGuire, Dahlke administered field sobriety tests, the results of which indicated McGuire was impaired. Dahlke then arrested McGuire "for the purpose of having him submit to a chemical test." Approximately 40 minutes after the traffic stop, Dahlke, who has a Class B permit to administer such tests, administered a chemical breath test on DataMaster serial No. 300402 in accordance with title 177 of the Nebraska Administrative Code. Dahlke verified the maintenance of the DataMaster, and then performed the chemical breath test on McGuire, which indicated a result of .199 of 1 gram of alcohol per 210 liters of breath.

2. POWELL

Powell testified he has been the Lincoln Police Department's DataMaster maintenance officer since 2016 and is responsible, along with two other individuals, for maintaining and testing Lancaster County's four DataMaster breath testing instruments, including DataMaster serial No. 300402. To be a maintenance officer, Powell must hold a Class B permit from the Department of Health and Human Services (DHHS) which allows operation of the DataMaster to collect subject samples. Powell's Class B permit was originally issued in March 2004 and has remained valid since that date. Powell is also charged with providing notice to DHHS identifying those persons who will be responsible for maintaining the breath testing instruments.

Powell further testified that the State of Nebraska has adopted rules and regulations found at title 177 for the testing of a subject's alcohol concentration and checking those instruments to ensure they are working properly. Powell expounded that the DataMaster is approved by title 177 as a method of testing alcohol in a subject's breath. Powell indicated his duties as a maintenance officer include conducting calibration verification checks on the instrument as required by DHHS and arranging for any repair of the instrument if it becomes necessary. Powell testified the DataMaster undergoes periodic testing required under title 177 and stated maintenance calibration tests are performed every 40 days.

Powell testified that DataMaster serial No. 300402 was placed into service in November 2016 and has been routinely maintained since that date with, as relevant here, 40-day calibration checks conducted on March 20 and April 24, 2018. Sometime after completion of the April 24 check, Powell learned the certificates of analysis initially sent with the calibration solutions were not signed by the person who tested the solutions; however, Powell obtained amended certificates of analysis in early May. Powell indicated the only difference between the original and amended certificates of analysis was the change in identity of the person who performed the test, but that difference did not change his opinion that the DataMaster was working properly when used to test McGuire's breath on April 6.

3. EXHIBITS

During trial, the State offered multiple exhibits, including exhibits 4, 5, and 6, to which McGuire objected based on relevancy, foundation, and hearsay and on right to confrontation grounds. Exhibit 4 contained a certification of accuracy form, referred to as an "Attachment 5," and test results that were completed when the DataMaster serial No. 300402 was placed into service, a certificate of analysis, and an amended certificate of analysis. Exhibit 5 was composed of calibration verification records, and exhibit 6 contained certificates of analysis and amended certificates of analysis. The court overruled the objections and received exhibits 4, 5, and 6. McGuire also objected on foundational grounds to the receipt of exhibit 10, which contained the printout showing McGuire's DataMaster breath analysis results, but the district court overruled his objection and received exhibit 10.

4. VERDICT AND SENTENCING

Ultimately, the jury found McGuire guilty of DUI with a breath alcohol content of 0.15 or more of 1 gram per 210 liters of his breath. The court sentenced McGuire to 3 years’ probation to include 60 days in jail, revoked his license for 7 years with the opportunity to seek an ignition interlock permit after 45 days, and imposed a $1,000 fine. McGuire has timely appealed and is represented by the same counsel that represented him during trial and sentencing.

III. ASSIGNMENTS OF ERROR

McGuire contends, renumbered and restated, that the district court erred in (1) overruling his objection to the admission of documents purporting to certify the accuracy of the DataMaster, (2) overruling his objection to the admission of the DataMaster breath analysis results, (3) overruling his objection to the falsified certificates of analysis purporting to certify the reliability of test solutions used to verify the calibration of the DataMaster, and (4) denying his motion for a directed verdict.

IV. STANDARD OF REVIEW

Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds. State v. Dady , 304 Neb. 649, 936 N.W.2d 486 (2019).

The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court's decision regarding relevance will not be reversed absent an abuse of discretion. State v. Draganescu , 276 Neb. 448, 755 N.W.2d 57 (2008).

An appellate court reviews de novo a trial court's determination of the protections afforded by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and reviews the underlying factual determinations for clear error. State v. Smith , 286 Neb. 856, 839 N.W.2d 333 (2013).

Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Case , 304 Neb. 829, 937 N.W.2d 216 (2020) ; State v. Stubbendieck , 302 Neb. 702, 924 N.W.2d 711 (2019).

V. ANALYSIS

1. CERTIFICATES OF ANALYSIS

McGuire's first three assignments of error on appeal are based upon an assertion similar to that recently addressed in State v. Krannawitter , 305 Neb. 66, 939 N.W.2d 335 (2020). That is, McGuire claims that because original certificates of analysis associated with testing solutions used to maintain the DataMaster were incorrect, the test results should have been omitted from evidence. In Krannawitter , a case involving original and amended certificates provided by the same persons and laboratory as here, the evidentiary objections were limited to foundation and violation of confrontation rights.

McGuire includes those objections and expands his objections to include hearsay and relevancy. We will analyze those four objections independently.

(a) Foundation

McGuire raises a foundational objection to the DataMaster test results. The Nebraska Supreme Court has already squarely addressed a foundational objection in Krannawitter . There, in dealing with amended certificates of analysis similar to the case at bar, the court held:

Krannawitter's argument on appeal is based on her assertion that because the original certificates of analysis were incorrect, there was insufficient foundation to support the introduction of her chemical breath test results. The four foundational elements which the State must establish as a foundation for the admissibility of a breath test in a [DUI] 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 [DHHS], and (4) that all other statutes were satisfied. The certificate of analysis at issue in this appeal is required by 177 Neb. Admin. Code, ch. 1, § 008.04A (2016), of [DHHS] regulations. Krannawitter contends—as set forth above—that the State did not prove § 008.04A, which requires that the test be properly conducted under the methods stated by [DHHS].

But Krannawitter's assertion that there was improper foundation overlooks both the framework used to determine whether a

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