State v. Cash

• Decision Date: 10 January 1995
• Docket Number: No. A-94-203,A-94-203
• Citation: 526 N.W.2d 447,3 Neb.App. 319
• Parties: STATE of Nebraska, Appellee, v. Kelly M. CASH, Appellant.
• Court: Nebraska Court of Appeals

Page 447

526 N.W.2d 447

3 Neb.App. 319

STATE of Nebraska, Appellee, v. Kelly M. CASH, Appellant.

No. A-94-203.

Court of Appeals of Nebraska.

Jan. 10, 1995.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. Findings of fact by the trial court on a motion to suppress will not be overturned on appeal unless clearly wrong.

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

3. Blood, Breath, and Urine Tests: Police Officers and Sheriffs: Time. When an officer is required to observe a person before administering a test, the officer need not stare fixedly at the person being tested for the specified period of time in order to satisfy the observation requirement, but must remain in the person's presence and be aware of the person's conduct.

4. Drunk Driving: Blood, Breath, and Urine Tests. A valid preliminary test is not a prerequisite to chemical testing under Neb.Rev.Stat. § 39-669.08(2) (Cum.Supp.1992).

5. Drunk Driving: Blood, Breath, and Urine Tests: Police Officers and Sheriffs: Probable Cause: Arrests. If an officer has probable cause to arrest a suspect for violating a statute or ordinance while the suspect is under the influence of alcoholic liquor or drugs and has reasonable grounds to believe that the suspect was driving while under the influence of alcohol or drugs, that officer may arrest the suspect and require a blood test notwithstanding the fact that a preliminary breath test was not administered or was improperly administered.

6. Blood, Breath, and Urine Tests: Words and Phrases. A chemical test can be a test of a substance to determine its chemical composition, as well as a test using chemicals.

7. Trial: Witnesses. It is within the trial court's discretion to determine if there is sufficient foundation for a witness to give his or her opinion about an issue in question.

8. Trial: Expert Witnesses. In dealing with questions calling for expert opinion, particularly hypothetical questions, much must be left to the discretion of the trial judge.

9. Trial: Appeal and Error. In the absence of an abuse of discretion, a trial court's ruling regarding the extent, scope, and course of cross-examination will be upheld on appeal.

Louie M. Ligouri, Auburn, for appellant.

Don Stenberg, Atty. Gen., and David T. Bydalek, Lincoln, for appellee.

SIEVERS, C.J., and HANNON and MUES, JJ.

HANNON, Judge.

Kelly M. Cash appeals her conviction for driving while intoxicated in violation of Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1992). Cash claims that the result of a test of her blood alcohol level should have been suppressed both because it was given after an improperly administered breath test and because the test was not a "chemical test" as required by statute. She further argues that the court improperly limited her counsel's cross-examination of the arresting officer. For the reasons recited below, we affirm.

STATEMENT OF FACTS

Brian Beckman, a deputy sheriff for Nemaha County, testified that on March 25, 1993, at approximately 11:05 p.m., he was traveling north out of Auburn, Nebraska, on U.S. Highway 75 when he noticed a car being driven by Cash cross over the centerline. Beckman followed Cash's vehicle to the Peru junction of Highways 67 and 75, where he dropped off a male transient who had been in the patrol car with Beckman. While dropping off the transient, Beckman observed Cash's car turn east onto Highway 67. Beckman then proceeded east onto Highway 67 and caught up with Cash's car. While following Cash's car, Beckman again observed the vehicle cross over the centerline

and then swerve back and cross over the shoulder line on the highway. Beckman then activated his patrol car's overhead red emergency lights and attempted to stop Cash's vehicle. After the lights came on, Cash reduced her vehicle's speed to 45 miles per hour and continued driving for approximately another quarter of a mile and then pulled off onto the shoulder of the highway. After both vehicles were stopped, Beckman approached the driver's side of the vehicle and requested Cash's operator's license and vehicle registration. While checking Cash's license, he noticed the odor of alcohol emanating from within the vehicle. A second female occupant was sitting in the front passenger seat of the vehicle. After smelling the odor of alcohol, Beckman requested Cash to step from the vehicle and go back to his patrol car. When Cash was walking back to the patrol car, Beckman noticed her steadying herself by using the side of her vehicle. In the space between Cash's vehicle and the patrol car, about 5 feet, Cash staggered. Beckman again noticed that, after reaching the patrol car, Cash was using the side of the car to maintain her balance. Beckman testified that while Cash was in the patrol car, he detected an odor of alcohol coming from Cash. Beckman then requested Cash to perform a preliminary breath test. Beckman did not have Cash perform any physical field sobriety tests because she was crying and hysterical and because he did not feel that these tests would have been fair to her at that point in time. At 11:13 p.m., Cash signed a preliminary breath test advisement prearrest form. Beckman then asked permission to search Cash's vehicle, and he had her sign a form for that purpose at 11:17 p.m. After Cash signed the search form, Beckman left Cash in his patrol car and proceeded to search the vehicle Cash had been driving. After finding no alcohol or other contraband in the vehicle, Beckman proceeded back to his patrol car and had Cash submit to a preliminary breath test at around [3 Neb.App. 322] 11:29 p.m., 16 minutes after Cash signed the preliminary breath test form. After Cash failed the breath test, Beckman placed her under arrest for driving while intoxicated. Beckman then transported Cash to Nemaha County Hospital in Auburn, Nebraska, so that a blood test could be performed on Cash as prescribed under Neb.Rev.Stat. § 39-669.08(4) (Cum.Supp.1992). Blood was drawn from Cash at 12:30 a.m. on March 26, 1993, and the test results showed Cash to have a body fluid alcohol content of .141. Finally, Beckman testified that in his opinion, Cash "was under the influence enough to impair her ability to operate a motor vehicle."

ASSIGNMENTS OF ERROR

Cash alleges that the trial court erred in the following ways: (1) in overruling her motion to suppress and in admitting evidence of the results of any purported chemical test of Cash's blood; (2) in admitting into evidence the results of a purported chemical test or tests of Cash's blood without proof of compliance with all statutory requirements; (3) in permitting the arresting officer to express his opinion, without a sound and proper basis, as to whether Cash was intoxicated; and (4) in violating Cash's constitutional rights by unduly limiting the cross-examination of Beckman.

STANDARD OF REVIEW

Findings of fact by the trial court on a motion to suppress will not be overturned on appeal unless clearly wrong. State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993); State v. Hicks, 241 Neb. 357, 488 N.W.2d 359 (1992). In deciding whether the trial court's findings on a motion to suppress are clearly erroneous, the reviewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witness testifying regarding the motion. Thompson, supra; State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992).

The trial court is given wide discretion in determining whether or not a lay witness' qualification to state an opinion has been established, and such discretion will not be disturbed on appeal unless there is an abuse of that discretion. Schmidt v. J.C. Robinson Seed Co., 220 Neb. 344, 370 N.W.2d 103 (1985); Northern Nat. Gas

Co. v. Beech Aircraft Corp., 202 Neb. 300, 275 N.W.2d 77 (1979).

ADMISSIBILITY OF BLOOD TEST

Cash argues that the chemical blood test results should have been suppressed for the following two reasons: (1) The statutory requirements were not properly followed in that the breath test given before the blood test was not properly administered, and (2) the blood test that was performed was not a chemical test and thus not a test allowed under Neb.Rev.Stat. § 39-669.11 (Cum.Supp.1992).

Validity of Breath Test.

Cash argues that the preliminary breath test was not performed in accordance with the methods prescribed by the state Department of Health and that therefore the blood test that was administered after the breath test was not admissible in evidence. We will first consider whether the breath test was properly administered.

A checklist used by Beckman contained the method for administering a preliminary breath test as prescribed by 177 Neb.Admin.Code, ch. 1 (1993), adopted by the Department of Health. One of the steps on this checklist reads as follows: "Observe subject for 15 minutes prior to testing." Cash alleges that Beckman failed to observe her for the required 15-minute period before administering the test. Cash states that during the 15-minute observation period, Beckman was searching her car and not "directly" observing her. Thus, Cash argues that since the preliminary test was not performed in accordance with the Department of Health test guidelines, the results should be vitiated, which would make the subsequent blood test inadmissible.

To start, we determine what the word "observe" means in relation to the relevant statutes and guidelines involved in this case. Observe is not defined in Neb.Rev.Stat. § 39-669 et seq. (Reissue 1988 & Cum.Supp.1992) or in the Department of Health test guidelines. It also has not been interpreted by Nebraska case law that we could find. Other jurisdictions have interpreted the word "observe" as used in...