State v. Clark

• Decision Date: 01 July 1988
• Docket Number: No. 87-802,87-802
• Citation: 425 N.W.2d 347,229 Neb. 103
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Terry L. CLARK, Appellant.

Page 347

425 N.W.2d 347

229 Neb. 103

STATE of Nebraska, Appellee, v. Terry L. CLARK, Appellant.

No. 87-802.

Supreme Court of Nebraska.

July 1, 1988.

Syllabus by the Court

1. Implied Consent: Blood, Breath, and Urine Tests. An arrested motorist refuses to submit to a chemical test authorized by Neb.Rev.Stat. § 39-669.08 (Cum.Supp.1986) to determine the motorist's blood-alcohol level when the motorist's conduct, demonstrated under the circumstances confronting the officer requesting the chemical test, justifies a reasonable person's belief that the motorist understood the officer's request for a test and manifested a refusal or unwillingness to submit to the requested test.

2. Implied Consent: Blood, Breath, and Urine Tests. Anything less than an unqualified, unequivocal assent to an arresting officer's request to submit to a chemical test constitutes a motorist's refusal to submit to a chemical test authorized by Neb.Rev.Stat. § 39-669.08 (Cum.Supp.1986).

3. Implied Consent: Blood, Breath, and Urine Tests. In a criminal prosecution for refusal to submit to a breath test authorized by Neb.Rev.Stat. § 39-669.08 (Cum.Supp.1986), a defendant's physical inability to perform the breath test may excuse conduct which would otherwise be construed or treated as a refusal to submit to such test.

4. Implied Consent: Blood, Breath, and Urine Tests. Notwithstanding an arrested motorist's expressed consent or agreement to take a breath test authorized by Neb.Rev.Stat. § 39-669.08 (Cum.Supp.1986), the motorist's subsequent conduct may be the basis for an inference that the motorist has withdrawn or revoked the previous consent to such test or has feigned consent to the test and, therefore, has refused to submit to the statutorily authorized breath test.

5. Implied Consent: Blood, Breath, and Urine Tests. Whether a motorist's physical inability prevents performance of a breath test authorized by Neb.Rev.Stat. § 39-669.08 (Cum.Supp.1986) is a question of fact.

6. Implied Consent: Blood, Breath, and Urine Tests. In reference to Neb.Rev.Stat. § 39-669.09 (Reissue 1984), an arrested motorist's right to designate a blood or urine test exists only when the arresting officer has directed that the chemical test be performed on a sample of the motorist's blood or urine.

7. Implied Consent: Blood, Breath, and Urine Tests. If an arrested motorist has refused a chemical test to determine the motorist's blood-alcohol level in accordance with Neb.Rev.Stat. § 39-669.08(4) (Cum.Supp.1986), the motorist has no right to a physician's evaluation of the motorist's condition or chemical tests in addition to that directed by the law enforcement officer.

Richard H. Hoch, of Hoch & Steinheider, Nebraska City, for appellant.

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

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

SHANAHAN, Justice.

After a bench trial, the county court for Nemaha County found Terry L. Clark guilty of refusing to submit to a blood-alcohol test authorized by Neb.Rev.Stat. § 39-669.08 (Cum.Supp.1986). On appeal, the district court affirmed Clark's conviction and sentence. We affirm.

In a bench trial of a criminal case and in determining the sufficiency of evidence to sustain a conviction, it is not the province of the Supreme Court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact. The finding of a defendant's guilt must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support such finding. State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987); State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987).

Under Neb.Rev.Stat. § 24-541.06(1) (Reissue 1985), concerning appeals from the county court, the district court conducts a review for error in the county court record. State v. Moore, supra. See, also, State v. Daniels, 224 Neb. 264, 397 N.W.2d 631 (1986) (district court as an intermediate court of appeals).

Late in the evening of January 30, 1987, Police Officer Jerry M. Railsback, while on patrol in Auburn, Nebraska, observed two tandem westbound cars approaching his eastbound cruiser. The second approaching car was closely following the first and had its "bright" headlamps on. When the driver of the second vehicle failed to dim his car's headlamps, Officer Railsback turned around his cruiser and overtook and stopped the second, or trailing, vehicle of the pair of westbound automobiles. Officer Railsback then approached the stopped vehicle and asked the driver to produce an operator's license and vehicle registration. At that point, Railsback smelled the strong odor of alcohol emanating from the driver, Clark, 17 years of age, and asked Clark if he had been drinking. With Clark was Rick Shaw, 18 years of age. When Clark denied drinking, Railsback asked Clark to step out of the car and perform some field sobriety tests. Although Clark did successfully recite the "English alphabet," Clark could not walk heel-to-toe in a straight line. Officer Railsback requested Clark to join him in the cruiser, where Railsback administered a preliminary breath test through an "Alco-Sensor." Clark failed that preliminary test, was placed under arrest for drunk driving, and was transported by Railsback to the police station.

At the police station, an officer read the "Implied Consent Form" to Clark, who signed that form for a chemical test to determine his blood-alcohol level and agreed to take a breath test on an Intoxilyzer Model 4011AS. Officer James Kattes, a certified operator of the Intoxilyzer, administered the breath test to Clark. Officer Kattes asked Clark to blow into the Intoxilyzer and explained that the machine's green light would be activated and remain activated, so long as the person who was being tested blows sufficient breath into the tube leading to the testing chamber of the Intoxilyzer. Officer Kattes described Clark's contact with the Intoxilyzer:

I asked Mr. Clark to blow into the intoxilizer; I showed him a green light on the machine that will light up when there's air passing through the tube. If there's not enough air passing through the tube the light will go out; I also explained that to Mr. Clark. Mr. Clark's first attempt he didn't blow hard enough into the machine; he blew for a short time and the light went back out; I told him he had to blow harder, and he never did. It appeared that he was putting his tongue over the end of the tube. So, I advised Mr. Clark that I was gonna give him another chance on the intoxilizer, and if he refused this time, or didn't give a sufficient sample, he would be written for a refusal and charged with the same.

Officer Kattes reset the Intoxilyzer for a test of Clark's breath and "again instructed Terry to blow through the machine; he again lit the light one time and that was it, he quit blowing again." After resetting the Intoxilyzer for a second time, Officer Kattes informed Clark that

this [was] his last chance, that he was going to have to give a good sample. Told him to blow into the machine, which he began to do; I encouraged him during the time he was blowing into the machine by saying, "keep blowing, keep blowing", continued to say that until all of a sudden he quit blowing and said, that's enough....

In his three contacts with the Intoxilyzer, Clark never supplied a sufficient sample of his breath for a test or, as described by Officer Railsback, "[I]t wasn't an adequate sample, the green light come [sic] on and then it went off, and he didn't blow hard enough...."

The police issued a citation which included the charge that Clark refused to submit to the breath test to determine Clark's blood-alcohol level. The officers denied using any "profane" or vulgar language in conjunction with their direction that Clark submit to the Intoxilyzer test.

The complaint alleged that Clark refused to submit to a breath test in response to a proper direction by a law enforcement officer requesting such test. Section 39-669.08(4) provides in part:

Any person arrested as provided in this section may, upon the direction of a law enforcement officer, be required to submit to a chemical test of his or her blood, breath, or urine for a determination of the alcohol content. Any person who refuses to submit to a chemical blood, breath, or urine test required pursuant to this section shall be subject to the administrative revocation procedures of the Director of Motor Vehicles provided in sections 39-669.07 to 39-669.09 and 39-669.14 to 39-669.18 and shall be guilty of a crime and, upon conviction thereof, shall be punished as [set forth in subsections (a) through (c) ].

Clark testified that, during his attempts to breathe into the Intoxilyzer, the officers "were telling me to quit fucking with the machine, that I was fucking with the machine, and to keep blowin' keep blowin'.... That I was fucking with the machine ... tellin' me I was fuckin' with the machine still ... quit fuckin' with the [Intoxilyzer]." Clark also testified that he believed the officers were trying to "get" him and that he "was scared" throughout the attempted Intoxilyzer tests.

After the police placed Clark in a cell at the county jail, Clark's father was reached by telephone and informed about bail for Clark's release. Cindy and Steve Cole, Clark's sister and brother-in-law, arrived at the sheriff's office. Although Clark had never requested a blood or urine test, because he believed the type of test was a matter within the police officer's discretion, the Coles asked that Clark be given a blood test at a local hospital, a test to be given at Coles' expense. The police refused Coles' request to allow a blood test on Clark.

The county court for Nemaha County found Clark guilty of refusing to submit to a chemical test authorized and required by § 39-669.08. The...