State v. Burling

• Decision Date: 13 February 1987
• Docket Number: No. 86-549,86-549
• Citation: 224 Neb. 725,400 N.W.2d 872
• Parties: , 55 USLW 2483 STATE of Nebraska, Appellee, v. Lyle D. BURLING, Appellant.
• Court: Nebraska Supreme Court

Page 872

400 N.W.2d 872

224 Neb. 725, 55 USLW 2483

STATE of Nebraska, Appellee, v. Lyle D. BURLING, Appellant.

No. 86-549.

Supreme Court of Nebraska.

Feb. 13, 1987.

Syllabus by the Court

1. Drunk Driving: Proof. An alcohol-related violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1984) may be proved by establishing that one was in actual physical control of a motor vehicle while under the influence of alcohol or that one was in actual physical control of a motor vehicle while having ten-hundredths of 1 percent by weight of alcohol in his or her body fluid.

2. Drunk Driving: Words and Phrases. As used in Neb.Rev.Stat. § 39-669.07 (Reissue 1984), the phrase "under the influence of alcoholic liquor" means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner.

3. Evidence: Words and Phrases. "Competent evidence" is that which tends to establish the fact in issue; that which is admissible and relevant on the point in issue.

4. Constitutional Law. The Constitution of this state distributes the powers of government to three separate and coequal departments or branches, namely, the legislative, executive, and judicial branches, and prohibits any one branch from exercising any power belonging to another branch.

5. Constitutional Law: Evidence. Determining whether evidence, if believed, is sufficient to sustain a conviction is a judicial function.

6. Constitutional Law: Legislature: Evidence. The Legislature may not declare the weight to be given to evidence or what evidence shall be conclusive proof of an issue of fact.

7. Constitutional Law: Legislature: Evidence. Whether evidence is of probative value is a legal question, the judicial analysis and resolution of which the Legislature cannot impair.

8. Blood, Breath, and Urine Tests. A chemical test result of one's body fluid for alcohol content which is subject to a margin of error must be adjusted so as to give the defendant the benefit of that margin.

9. Convictions: Appeal and Error. A conviction will not be set aside in the absence of a showing that an error prejudiced the defendant.

Robert R. Gibson, of Professional Legal Associates of Nebraska, P.C., Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Janie C. Castaneda, for appellee.

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

PER CURIAM.

Following a county court bench trial, defendant, Lyle D. Burling, was convicted of failing to stop at a clearly marked stop sign and of driving while under the influence of alcohol, first offense, in violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1984). The county court judgment was affirmed on appeal to the district court. While defendant appeals both convictions to this court, his three assignments of error relate solely to the drunk driving conviction and combine to claim that the district court erred in failing to find error appearing on the record made in the county court, in that (1) the Intoxilyzer Model 4011 AS test result should not have been considered, and (2) the evidence does not support the conviction. We affirm.

At approximately 1 a.m. on July 13, 1985, Trooper Steven Gill of the Nebraska State Patrol observed a pickup truck, pulling a trailer which was carrying an automobile, weave across the centerline of the road four to five times, change speed from 45 to 60 mph, and fail to stop for a stop sign at the intersection of two highways. Gill then turned on his flashing lights and proceeded to stop the defendant driver, who explained he had not stopped for the sign because of difficulty in pulling the trailer.

Gill noticed defendant had the odor of alcohol on his breath, had slurred speech and had trouble retrieving his license from his billfold. When instructed to go to the patrol car, defendant staggered and swayed, lost his footing "once or twice," and had difficulty walking on the shoulder of the road.

After he got inside the patrol car, defendant was cited for failing to stop at the stop sign and was asked to recite the alphabet. He made three attempts to recite the alphabet, but could not proceed past the letter k. According to Gill, defendant also failed a "horizontal gaze test."

More field sobriety tests were performed outside of the patrol car. When instructed to walk heel to toe, defendant staggered and had to step to the side to balance himself. When instructed to hold his arms out, close his eyes, and touch his finger to the tip of his nose, defendant would either touch the bridge of his nose or miss his nose completely. He also swayed while attempting to perform this test. When instructed to balance on one leg and raise the opposite foot off the ground, defendant lifted his foot, then dropped it immediately. Defendant was asked to stand erect with his head tilted back and his eyes closed. During this maneuver defendant swayed, staggered, and almost fell. Finally, defendant was asked to take a preliminary breath test, which he also failed. Gill concluded that defendant was driving while under the influence of alcohol.

Defendant was then taken to the Jefferson County sheriff's office, where a test on an Intoxilyzer Model 4011AS was administered by Fairbury Police Officer Terry Mathy. Mathy testified that he had difficulty getting a sample because defendant would not blow hard enough into the machine to produce a reading. After the fifth attempt, a reading showing that defendant had a blood alcohol level of .164 of 1 percent by weight of alcohol was obtained. Mathy also testified that defendant's speech was slurred, his clothes were disorderly, and his eyes were bloodshot.

Section 39-669.07 provides in part:

It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug or when that person has ten-hundredths of one per cent or more by weight of alcohol in his or her body fluid as shown by chemical analysis of his or her blood, breath, or urine. Any person who shall operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug or while having ten-hundredths of one per cent by weight of alcohol in his or her body fluid as shown by chemical analysis of his or her blood, breath, or urine shall be deemed guilty of a crime....

Thus, an alcohol-related violation of § 39-669.07 may be proved by establishing that one was in actual physical control of a motor vehicle while under the influence of alcohol or that one was in actual physical control of a motor vehicle while having ten-hundredths of 1 percent by weight of alcohol in his or her body fluid. State v. Tomes, 218 Neb. 148, 352 N.W.2d 608 (1984); State v. Hilker, 210 Neb. 810, 317 N.W.2d 82 (1982); State v. Weidner, 192 Neb. 161, 219 N.W.2d 742 (1974). As used in § 39-669.07, the phrase "under the influence of alcoholic liquor" means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Weidner, supra. See, also, Uldrich v. State, 162 Neb. 746, 77 N.W.2d 305 (1956); Shanahan v. State, 162 Neb. 676, 77 N.W.2d 234 (1956).

Under the provisions of § 39-669.07 the measurement of the amount of alcohol in the body fluid, that is, in the blood, may be determined by a chemical analysis of the blood, breath, or urine. Thus, the result of any chemical analysis of the breath or urine must be converted into a percentage by weight of alcohol in the blood.

An associate professor of pharmacology who is also a research scientist testified on behalf of the defendant that the machine known as...