State v. Beerbohm, 87-961

• Decision Date: 05 August 1988
• Docket Number: No. 87-961,87-961
• Citation: 229 Neb. 439,427 N.W.2d 75
• Parties: STATE of Nebraska, Appellee, v. Kenneth V. BEERBOHM, Appellant.
• Court: Nebraska Supreme Court

Page 75

427 N.W.2d 75

229 Neb. 439

STATE of Nebraska, Appellee, v. Kenneth V. BEERBOHM, Appellant.

No. 87-961.

Supreme Court of Nebraska.

Aug. 5, 1988.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. The Nebraska Supreme Court will uphold a trial court's findings of fact on a motion to suppress unless those findings are clearly wrong.

2. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, the Nebraska Supreme Court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed witnesses testifying regarding such motion.

3. Criminal Law: Investigative Stops: Probable Cause. An investigatory stop must be justified by an objective manifestation that the person stopped has been, is, or is about to be engaged in criminal activity.

4. Criminal Law: Investigative Stops: Probable Cause. A vehicle weaving in its own lane of traffic provides an articulable basis or reasonable suspicion for stopping a vehicle for investigation regarding the driver's condition in operating the weaving vehicle.

5. Appeal and Error. Irrespective of the scope of its review, the Nebraska Supreme Court has the obligation to reach an independent conclusion on questions of law.

6. Statutes. In construing a statute, the Nebraska Supreme Court will, if possible, try to avoid a construction which leads to absurd, unjust, or unconscionable results.

7. Implied Consent: Blood, Breath, and Urine Tests. A refusal to submit to a chemical test occurs within the meaning of Neb.Rev.Stat. § 39-669.08(4) (Cum.Supp.1986) when the licensee, after being asked to submit to a test, so conducts himself as to justify a reasonable person in the requesting officer's position in believing that the licensee understood that he was being asked to submit to a test and manifested an unwillingness to take it.

8. Implied Consent: Blood, Breath, and Urine Tests. The choice of whether one's blood or urine shall be tested for determination of alcohol content belongs to the licensee; a licensee who, upon request of a law enforcement officer to do so, refuses to specify which fluid he or she will produce for such testing has refused to submit to a chemical test in violation of Neb.Rev.Stat. § 39-669.08(4) (Cum.Supp.1986).

Frank J. Skorupa, Columbus, for appellant.

Robert M. Spire, Atty. Gen., and Yvonne E. Gates, Lincoln, for appellee.

Before HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

PER CURIAM.

Defendant-appellant, Kenneth V. Beerbohm, was charged in the county court with driving while under the influence of alcohol in violation of Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1986), and with refusing to submit to chemical testing in violation of Neb.Rev.Stat. § 39-669.08(4) (Cum.Supp.1986). The jury found him not guilty of the first charge, but guilty of refusing to submit to testing. The county court adjudged and sentenced him accordingly, whereupon Beerbohm appealed to the district court, which affirmed the conviction but modified the sentence imposed by the county court. In his appeal to this court Beerbohm asserts the district court erred in failing to find error appearing on the record, in that the county court erred in (1) finding probable cause to arrest him and (2) finding Beerbohm refused to submit to chemical testing. The State has not cross-appealed; thus, we do not concern ourselves with the propriety of the district court's modification of the sentence imposed by the county court, and affirm the judgment of the district court.

Beerbohm moved the county court to suppress all evidence obtained after his arrest, claiming that there was no probable cause to arrest him. At the suppression hearing, Columbus Police Officer James Lippstreu testified that while on duty at approximately 1 o'clock on the morning of October 9, 1986, he was informed by radio that a blue pickup truck bearing license number 10-194 had "scraped the railing on the viaduct" and then headed north. Lippstreu subsequently observed a blue pickup bearing license number 10-Dealer-194 at the intersection of 19th Street and 33d Avenue, heading north on 33d Avenue. Lippstreu followed and observed the pickup, in the course of its travels north on 33d Avenue, weave three or four times from the centerline of the extra-wide northbound lane into those areas which were free of parked cars along the curb.

Lippstreu also testified that as he followed the pickup, he observed it properly negotiate stoplights at the intersections of 33d Avenue and 23d Street and 33d Avenue and 27th Street, properly make a left turn and a right turn, and make what Lippstreu considered an improper left turn at 33d Avenue and 23d Street.

After observing the weaving progress of the pickup, Lippstreu activated his emergency lights, and the pickup pulled into a driveway. Lippstreu found Beerbohm to be the driver.

On the basis of this evidence the county court denied Beerbohm's motion.

At trial, Lippstreu, over Beerbohm's objections, testified as he had at the suppression hearing in all material respects, adding that as he followed the pickup, Lippstreu himself had not found it necessary to weave across the northbound lane of 33d Avenue as he passed the parked cars.

Lippstreu further testified that as he approached the pickup after it had stopped, the driver emerged, his breath smelled strongly of alcohol, and he "had to support himself with his hands against the door and the bed of the pickup at that time." Upon inquiry, Beerbohm told Lippstreu that he had had two beers. Lippstreu then asked Beerbohm to perform two field sobriety tests: to walk heel-to-toe and to touch his nose starting with head back and arms outstretched. Beerbohm was unable to perform either test, nearly falling each time. Lippstreu then placed Beerbohm under arrest. Upon subsequent examination at the scene, Lippstreu discovered that the pickup had "a slight scratch on the right front fender ... the molding part."

Lippstreu transported Beerbohm to the police station, where Lippstreu read Beerbohm an "Implied Consent Form," which advises the suspect that he is under arrest for driving "while under the influence of alcoholic liquor," informs the suspect that he is required to submit to a chemical test of blood, breath, or urine, warns the suspect that refusal to submit to such a test constitutes a crime, and outlines the penalties involved. The form, which is apparently designed to be read to suspects by a police officer, also states, "If I direct that the test shall be of your breath, the test shall be of your breath. If I direct that the test shall be of your blood or urine, you may choose whether the test shall be of your blood or urine." Lippstreu testified, "We do not have a breath machine, so the defendant had an option whether to take [a] blood or urine [test]." The form in evidence carries a notation that "I hereby direct that the test shall be of your blood-urine."

Although Lippstreu did not recall ever warning Beerbohm that a refusal to choose between a blood or urine test would be considered a refusal to submit to any test, Lippstreu testified that after he read the foregoing consent form to Beerbohm, he

asked Mr. Beerbohm which test he would like, and he said, I'll leave that up to you. Whichever's best.

....

... Then he was asked a second time which test he would prefer, blood or urine? He said, you choose for me. I said, I will not choose for you. I'm not going to choose which test you will take. That's your choice. And I asked him a third time and he said he wanted to talk to his attorney....

....

... I told Mr. Beerbohm that he did not have the right for an attorney at this point.

... Then I asked Mr. Beerbohm again which test he preferred and he said he would not take either test.

In considering Beerbohm's first assignment of error, that the county and district courts erred in finding probable cause to arrest him, we remind ourselves that this court will uphold a trial court's findings of fact on a motion to suppress unless those findings are clearly wrong. State v. Price, 229 Neb. 448, 427 N.W.2d 81 (1988); State v. McCurry, 228 Neb. 841, 424 N.W.2d 364 (1988); State v. Rowe, 228 Neb. 663, 423 N.W.2d 782 (1988); State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988); State v. Gibson, 228 Neb. 455, 422 N.W.2d 570 (1988). Moreover, in determining whether a trial court's findings on a motion to suppress are clearly erroneous, this court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed witnesses testifying regarding such motion. State v. McCurry, supra; State v. Boysaw, 228 Neb. 316, 422 N.W.2d 346 (1988).

In several recent cases this court has set out clear guidelines for investigatory stops by police officers in this state. We have observed that an investigatory stop must be justified by an objective manifestation that the person stopped has been, is, or is about to be engaged in criminal activity. State v. Dail, supra; State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987). A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. State v. Dail, supra; State v. Thomte, supra. A vehicle weaving in its own lane of traffic provides an articulable basis or reasonable suspicion for stopping a vehicle for investigation regarding the driver's condition in operating the weaving vehicle. Such a circumstance supports an officer's justifiable belief that the weaving vehicle is being driven by a person who is under the influence of alcohol, in violation of the drunk driving statute, § 39-669.07. State v. Thomte, supra.

Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986), recently presented a factual situation remarkably similar to that of ...