State v. Andersen

• Decision Date: 11 March 1983
• Docket Number: No. 82-182,82-182
• Citation: 331 N.W.2d 507,213 Neb. 695
• Parties: STATE of Nebraska, Appellee, v. Frank C. ANDERSEN, Appellant.
• Court: Nebraska Supreme Court

Page 507

331 N.W.2d 507

213 Neb. 695

STATE of Nebraska, Appellee, v. Frank C. ANDERSEN, Appellant.

No. 82-182.

Supreme Court of Nebraska.

March 11, 1983.

Syllabus by the Court

1. Miranda Rights. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

2. Miranda Rights. The admission of statements obtained in violation of Miranda may nevertheless be considered harmless error not requiring reversal of an otherwise valid conviction. For the error to be prejudicial and require reversal, the court must find that the jury would have found the State's case significantly less persuasive had the disputed testimony been excluded.

3. Jury Instructions. The repetition of an instruction is not reversible error unless its effect is to mislead the jury.

Richard L. Kuhlman, Fremont, for appellant.

Paul L. Douglas, Atty. Gen., and Dale D. Brodkey, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and WARREN, District Judge.

KRIVOSHA, Chief Justice.

The appellant, Frank C. Andersen, was convicted by a jury in the county court of Dodge County, Nebraska, of operating or having actual physical control of a motor vehicle while under the influence of alcoholic liquor or while having ten-hundredths of one percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his breath, contrary to the provisions of Neb.Rev.Stat. § 39-669.07 (Reissue 1978). By reason of this being Andersen's second offense, the trial court sentenced him to 90 days in jail and suspended his driver's license for a period of 1 year. Andersen appealed the conviction to the District Court for Dodge County, Nebraska, which affirmed the conviction and sentence previously entered by the county court. He then perfected his appeal to this court.

While his assignments of error are 12 in number, when regrouped they are essentially as follows: He first complains that the trial court erred in admitting into evidence, over Andersen's objection, Andersen's own statement to the police officer that he had been celebrating getting off of probation for driving while intoxicated. He further assigns as error the fact that the trial court permitted the introduction into evidence of the results of certain portions of a breath analyzer test without first giving Andersen notice that such results would be offered in evidence. A third assignment of error concerns the giving of two instructions concerning driving while intoxicated. And, lastly, Andersen maintains that the evidence was insufficient to sustain the finding of guilt. Our examination of the record compels us to affirm.

The record reveals that at approximately 8:25 p.m. on March 15, 1981, a vehicle driven by Andersen was observed by a Fremont police officer, Priscilla Seyboth. At the time, the Andersen vehicle was going east on Linden Street at approximately 5 m.p.h. After stopping at an intersection the Andersen vehicle made a left turn onto Clarkson Street. Officer Seyboth then observed that the vehicle was being driven on the grassy area between the street and the sidewalk and that only the wheels on the driver's side of the vehicle were in the street. Andersen continued to drive the vehicle over the curb for approximately one-half of a block. There was no other traffic on Clarkson Street at that time.

After observing this behavior Officer Seyboth pulled up behind the Andersen vehicle and turned on the overhead flashing lights on her vehicle. Andersen gave no indication that he saw the police car behind him and, instead, moved into the left turn lane on Clarkson at its 16th Street intersection. He then made a left turn onto 16th Street, and Officer Seyboth began honking her horn to attract his attention. Andersen finally pulled over about half a block from the intersection.

As Officer Seyboth was approaching the Andersen vehicle, she observed Andersen attempt to get out of the vehicle and almost fall to the ground. She also noted a very strong odor of alcohol on Andersen. Andersen was unable to find his driver's license in his wallet after fumbling with it for several minutes. Andersen told Officer Seyboth that he had been driving his vehicle up out of the street in order to avoid traffic.

Officer Seyboth then asked Andersen to perform four field sobriety tests. He was unable to perform the balance test without swaying or staggering, and was unable to complete the heel-to-toe test after three attempts. A test requiring him to pick up a key ring while standing on one leg was demonstrated by Officer Seyboth to Andersen. He was unable to stand on one leg and he completely missed the key ring. When asked to close his eyes and touch the tip of his nose with his index finger, he was unable to comply.

Officer Seyboth then took Andersen back to the police cruiser and asked him to sit in the front seat. After she read the preliminary test advisement to Andersen, he agreed to submit to an Alco-Sensor test. While the officer and Andersen were sitting in the cruiser, prior to Andersen taking the Alco-Sensor test, Officer Seyboth asked Andersen if he had been drinking. He responded that he had just been celebrating getting off of probation for driving while intoxicated. The State concedes that Andersen had not been given a Miranda warning by Officer Seyboth before the inquiry was made. After waiting a requisite 15 minutes, Officer Seyboth administered the Alco-Sensor test. The device registered "fail," and Officer Seyboth informed Andersen that he was under arrest.

Andersen was then taken to the Fremont police station by Officer Seyboth. Officer Lutes read an implied consent advisement form to Andersen, who agreed to submit to a gas chromatograph test. The purpose of the test is to determine the percentage of alcohol in the body fluid of an individual. The machine was prepared in accordance with the technique previously approved by the State of Nebraska, Department of Health, including a test to check the calibration of the machine, using a known standard. After explaining the test to Andersen the test was administered and a digital reading of .261 was obtained. The officer switched the machine to "standby" and obtained a graphic readout. Andersen was then taken to the station's holding cell.

During the trial in the county court the result of the breath test conducted at the police station was admitted into evidence over Andersen's objection. Also admitted in evidence was the statement made by Andersen to Officer Seyboth concerning his reason for drinking that evening. In addition to the result of the breath test, there was likewise offered in evidence all of the additional testimony concerning Andersen's erratic driving and his inability to perform any of the field sobriety tests. There was also evidence to the effect that there was a very strong odor of alcohol present on Andersen, that his speech was slurred, that his eyes were bloodshot, and that he nearly fell to the ground getting out of his vehicle.

Officer Tamke, the officer in charge of maintenance and calibration for the Fremont Police Department, testified at the trial about the procedures used in calibrating the equipment used to conduct the test on Andersen. The equipment was an Intoximeter Mark IV gas chromatograph. Officer Tamke also testified concerning the NALCO standard solution used to test the accuracy of the machine. He stated, without contradiction, that the device was in good working order on March 15, 1981, when the test was administered to Andersen.

Andersen testified in his own defense at the trial. He claimed that his total alcohol intake on March 15, 1981, consisted of half a can of beer and a swallow of whiskey. He maintained that a prior injury to his legs was the reason for his inability to perform the field sobriety test. He further testified that the steering mechanism on his vehicle was damaged, thereby causing the erratic driving observed by Officer Seyboth.

We turn first to Andersen's claim that the result of the breath test administered at the police station should not have been admitted in evidence because the State failed to satisfy certain foundational requirements as set out in our opinion in State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980). In the Gerber case we said at 90-91, 291 N.W.2d at 411-12: "[B]efore the State may offer in evidence the results of a breath test for the purpose of establishing that a defendant was at a particular time operating a motor vehicle while having ten-hundredths of one percent or more by weight of alcohol in his body fluid, the State must prove the following: (1) That the testing device or equipment was in proper working order at the time of conducting the test; (2) That the person giving and interpreting the test was properly qualified and held a valid permit issued by the Nebraska Department of Health at the time of conducting the test; (3) That the test was properly conducted in accordance with a method currently approved by the Nebraska Department of Health; and (4) That there was compliance with any statutory requirements."

Though Andersen argues that the State failed to establish the second, third, and fourth requirements of the Gerber test, the record clearly establishes the contrary. Andersen's assertion that Officer Seyboth lacked sufficient knowledge of alcohol chemistry or test variables to accurately perform a breath test by using the Mark IV equipment is simply without merit. The State produced evidence that Seyboth was properly qualified and on March 15, 1981, held a valid permit issued by the...