State v. Deets
| Decision Date | 26 January 1990 |
| Docket Number | No. 89-440,89-440 |
| Citation | 450 N.W.2d 696,234 Neb. 307 |
| Parties | STATE of Nebraska, Appellee, v. Tim J. DEETS, Appellant. |
| Court | Nebraska Supreme Court |
David J. Warnemunde of Moyer, Moyer, Egley, Fullner & Warnemunde, Madison, for appellant.
Robert M. Spire, Atty. Gen. and Donald E. Hyde, Lincoln, for appellee.
The defendant has appealed his conviction for driving while intoxicated, a violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1988), which is a Class W misdemeanor. The defendant assigns as errors the failure of the trial court to suppress the results of, and the reception into evidence of, a chemical breath test, when the defendant had not properly been advised of the consequences of his refusal to submit to such test. We affirm.
The defendant was stopped while driving a motor vehicle on July 22, 1988, by a deputy sheriff for Madison County. The officer had observed the defendant's vehicle traveling back and forth across its driving lane, crossing both the centerline and the shoulder line of the road surface. Further observations made by the officer furnished reasonable grounds to suspect that defendant was intoxicated, and he was taken to the sheriff's office.
The deputy then read to the defendant from a form entitled "Implied Consent Advisement." This form explained the penalties for driving while intoxicated and also explained that in the event that defendant refused the breath test, the officer would be required to report the refusal to the Director of Motor Vehicles, who, after a hearing and if deciding that the refusal was not reasonable, would revoke the defendant's driving privileges for a period of 6 months. The defendant agreed to the test, which gave a reading of .18.
Upon being charged in county court, the defendant moved to suppress the results of the breath test. The motion was overruled. At trial, the defendant objected to the introduction of the results of the breath test. The objection was overruled. The basis of defendant's objection in each instance was that he was not properly advised of the consequences of refusing to submit to such a test.
The defendant, in the argument portion of his brief, makes reference to the requirements of State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980). However, an error not assigned will not be considered. Neb.Ct.R. of Prac. 9D(1)d (rev.1989).
There is no question but that the implied consent advisement was wrong; i.e., one of the consequences of the refusal to submit to the test is that it may result in the revocation of driving privileges for 1 year, not 6 months. Neb.Rev.Stat. § 39-669.16 (Reissue 1988). Although "a penal statute is to be construed strictly, it is to be given a sensible construction in the context...
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Smith v. State, Dept. of Motor Vehicles, S-93-938
...knows and is in a position to make a rational and voluntary decision as to whether he or she will comply with law. State v. Deets, 234 Neb. 307, 450 N.W.2d 696 (1990). If it can be shown that the licensee was properly advised, the only understanding required by the licensee is an understand......
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State v. Emrich
...involving a driving under the influence offense. See, Christner, supra; Smith, supra. Citing our decision in State v. Deets, 234 Neb. 307, 450 N.W.2d 696 (1990), we concluded in Christner and in Smith that the purpose of requiring an officer to advise a driver-arrestee of the consequences o......
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State v. Christner
...prosecution involving a driving under the influence offense." Id. at 366, 535 N.W.2d at 698. Citing our decision in State v. Deets, 234 Neb. 307, 450 N.W.2d 696 (1990), we concluded in Smith that the purpose of requiring an officer to advise a driver-arrestee of the consequences of refusing......
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State v. Quandt
...object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. State v. Deets, 234 Neb. 307, 450 N.W.2d 696 (1990). However, it is not within the province of this court or any other tribunal to read a meaning into a statute which is not......