State v. Babcock, 87-427

• Decision Date: 19 February 1988
• Docket Number: No. 87-427,87-427
• Parties: STATE of Nebraska, Appellee, v. Charles W. BABCOCK, Appellant.
• Court: Nebraska Supreme Court

Page 527

419 N.W.2d 527

227 Neb. 649

STATE of Nebraska, Appellee, v. Charles W. BABCOCK, Appellant.

No. 87-427.

Supreme Court of Nebraska.

Feb. 19, 1988.

Syllabus by the Court

1. Drunk Driving: Proof: Blood, Breath, and Urine Tests. An alcohol violation in Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1986) may be proved in either one of two ways: (1) that a person operated or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor; or (2) that a person while driving a motor vehicle or who was in physical control of a motor vehicle had ten-hundredths of 1 percent or more by weight of alcohol in his/her body fluid as shown by chemical analysis of his/her blood, breath, or urine.

2. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

3. Blood, Breath, and Urine Tests. A reading of the test results from an Intoxilyzer Model 4011AS is not to be adjusted automatically as a matter of law. Whether an adjustment is required is dependent upon the credible evidence in each case.

4. Right to Counsel. It is not necessary for a court to explain defendant's right to counsel when the defendant is represented by counsel.

Michael F. Gutowski, Omaha, for appellant.

Gary P. Bucchino, Omaha City Prosecutor, for appellee.

HASTINGS, C.J., WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and HANNON, Dist. Judge.

FAHRNBRUCH, Justice.

Defendant, Charles W. Babcock, after a Douglas County Court bench trial, was found guilty of driving a motor vehicle while under the influence of alcohol, second offense, in violation of Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1986). On appeal, the conviction and sentence were affirmed by the district court. We also affirm the conviction and sentence.

In substance, the defendant complains: (1) There was insufficient evidence to convict him; (2) the trial court erred in admitting the State's rebuttal testimony; and (3) the trial court erred in ruling that the defendant had previously been convicted of a like offense. We affirm.

An alcohol violation in § 39-669.07 may be proved in either one of two ways: (1) that a person operated or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor; or (2) that a person while driving a motor vehicle or who was in physical control of a motor vehicle had ten-hundredths of 1 percent or more by weight of alcohol in his/her body fluid as shown by chemical analysis of his/her blood, breath, or urine. State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987); State v. Tomes, 218 Neb. 148, 352 N.W.2d 608 (1984).

In reviewing the sufficiency of evidence in a case of this nature, we have said:

" '[I]t is not the province of this court to resolve conflicts in the evidence, pass on credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it....' "

State v. Thomte, 226 Neb. 659, 665, 413 N.W.2d 916, 920 (1987); State v. Richter, 225 Neb. 871, 408 N.W.2d 324 (1987); State v. Hvistendahl, 225 Neb. 315, 405 N.W.2d 273 (1987).

There is evidence in this case from which the trial court could find beyond a reasonable doubt that defendant operated his motor vehicle while under the influence of alcoholic liquor.

On November 21, 1986, two police officers in a single cruiser began following a white pickup truck after it was observed to have a defective taillight lens. At the time, the truck was being driven by the defendant north on 85th Street in Omaha, Douglas County, Nebraska. Some distance north of Blondo Street, 85th Street merges into 88th Street. The street has one lane for northbound traffic and one lane for southbound traffic. As the truck and cruiser proceeded north, the truck swerved over the centerline six times, causing at least one oncoming car to take evasive action to avoid a collision. Shortly thereafter, the truck turned right into a Denny's restaurant driveway, and, in so doing, the right rear wheel of the truck hit the street curb. The defendant utilized two parking stalls in parking his truck.

When one of the officers asked the defendant for his driver's license, vehicle registration, and insurance card, the defendant took out his billfold, fumbled for quite a long time to find his driver's license, and could not find his vehicle registration. Later, after the defendant was arrested, the officer found the vehicle registration in the glove compartment of the truck. No insurance card was ever produced or found. The officer testified that when he contacted the defendant there was a moderate to strong odor of alcoholic beverage about the defendant, that defendant's eyes were glazed and bloodshot, that defendant's speech was slurred and confused, and that defendant mumbled.

The officer testified that he had to hold on to the defendant to keep him from falling as the defendant was getting out of his truck. The officer further testified that he had to hold on to defendant while defendant was trying to walk at the scene and, later, at police headquarters. Had the officer not held on to the defendant, the defendant would have fallen, according to the officer. At the scene, the defendant was given an Alco-Sensor test which registered .22 percent. The defendant was then placed under arrest about 9:30 p.m. Defendant was transported to police headquarters, where he performed a finger-to-nose test. With his right hand, defendant was hesitant, but with his left hand, "sure." He was slow in picking up a coin from a table, but did so.

The officer who first observed defendant's truck corroborated the testimony of the arresting officer in most material respects.

The arresting officer, based upon his observations of the defendant for 1 1/2 to 2 hours, and based upon the officer's experience with intoxicated people during nearly 15 years as a policeman, gave his opinion that the defendant was intoxicated and had too much to drink to be driving.

In his testimony, the defendant stated that his walking was impaired due to a hip injury, that his speech was impaired by false teeth, and that his eyes were always bloodshot. The defendant admitted he had a crack in...