State v. Gerber

• Decision Date: 15 April 1980
• Docket Number: No. 42816,42816
• Citation: 291 N.W.2d 403,206 Neb. 75
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. John B. GERBER, Appellant.

Page 403

291 N.W.2d 403

206 Neb. 75

STATE of Nebraska, Appellee, v. John B. GERBER, Appellant.

No. 42816.

Supreme Court of Nebraska.

April 15, 1980.

Syllabus by the Court

1. Jury Trial: Rules of Courts. One charged with a criminal violation in county or municipal court, except criminal cases arising under city or village ordinances and traffic infractions, may make an oral request for a jury trial at the time of arraignment or may make a written request prior to trial in accordance with rules established by the particular county or municipal court.

2. Blood, Breath, and Urine Tests: Evidence: Foundation. Before the results of a preliminary breath test may be received in evidence, it must be shown that the requirements of Neb.Rev.Stat. § 39-669.11 (Reissue 1978) have been met, including evidence that the method of performing the preliminary test has been approved by the Nebraska Department of Health and that the person administering and interpreting the test possesses a valid permit issued by the Nebraska Department of Health for that purpose.

3. Arrests: Drunk Driving. The offering of a preliminary test of the breath under Neb.Rev.Stat. § 39-669.08(3) (Reissue 1978) is not a condition precedent to an arrest for any offense arising out of acts alleged to have been committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor.

4. Blood, Breath, and Urine Tests: Evidence: Foundation. Before the results of a Breathalyzer test may be received in evidence, it must be shown that the requirements of Neb.Rev.Stat. § 39-669.11 (Reissue 1978) have been met, including evidence that the method of performing the Breathalyzer test has been approved by the Nebraska Department of Health and that the person administering and interpreting the test possessed a valid permit issued by the Nebraska Department of Health for that purpose.

5. Blood, Breath, and Urine Tests: Evidence: Foundation. Before the results of a Breathalyzer test for blood alcohol are admissible into evidence, a proper foundation must be laid for the admission of such evidence.

6. Blood, Breath, and Urine Tests: Evidence: Foundation: Drunk Driving. Before the State may offer in evidence the results of a breath test for the purpose of establishing that a defendant was at a particular time operating a motor vehicle while having ten-hundredths of one percent or more by weight of alcohol in his body fluid, the State must prove the following: (1) That the testing device or equipment was in proper working order at the time of conducting the test; (2) That the person giving and interpreting the test was properly qualified and held a valid permit issued by the Nebraska Department of Health at the time of conducting the test; (3) That the test was properly conducted in accordance with a method currently approved by the Nebraska Department of Health; and (4) That there was compliance with all statutory requirements.

Friedman Law Offices, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Terry R. Schaaf, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

The appellant, John B. Gerber (Gerber), was convicted in the municipal court of the city of Lincoln, Nebraska, of the offense of operating a motor vehicle while having ten-hundredths of one percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath, or urine contrary to Neb.Rev.Stat. § 39-669.07 (Reissue 1978). Gerber appealed the conviction to the District Court for Lancaster County, Nebraska, which affirmed the judgment of the municipal court. Thereafter, he perfected his appeal to this court. For reasons more particularly set out in this opinion, we reverse and dismiss the complaint.

The evidence reflects that shortly after midnight on October 21, 1978, a vehicle driven by Gerber was observed by a member of the Lancaster County sheriff's department, Gary Rikli (Rikli), as it passed through a mobile radar clock in excess of the lawful speed. Rikli proceeded to follow Gerber's vehicle and observed it to cross the centerline, go back into the right lane, and then partially leave the roadway and pull back into the lane again. Rikli turned on his red light and started pursuing Gerber's vehicle. When the vehicle did not stop, Rikli activated his siren, at which time the vehicle slowed and pulled over to the side of the road. When Rikli approached the vehicle, he observed that Gerber was behind the wheel and that there were three other persons in the vehicle. Upon arriving at the vehicle, Rikli detected the odor of alcohol. He asked Gerber to accompany him back to his police cruiser where he again detected a strong odor of alcohol.

After Rikli read to Gerber a statement concerning an alcohol pretest, Gerber agreed to take the pretest. The evidence discloses that the pretest, known as an "Alco-sensor," is a preliminary test made on the breath of an individual to determine the level of alcohol content. The device takes into itself 1 cubic centimeter of the subject's breath and analyzes it for alcohol content. The result of the analysis is displayed on a readout which is a part of the device. There are three possible readouts: "pass," "fail," or "1." The test performed on Gerber indicated "fail." At that point, Rikli placed Gerber under arrest and transported him to the Lincoln police department.

Upon arrival at the Lincoln police department, Rikli turned Gerber over to an officer of the Lincoln police department, Officer Edward Sexton (Sexton), who was in charge of administering breath tests by the use of a gas chromatograph intoximeter (a "Breathalyzer"). Gerber was asked whether he would submit to such a test and, upon his agreeing to do so, the test was administered. On the basis of the test results, Gerber was charged with a violation of § 39-669.07 and he was brought before the municipal court of the city of Lincoln (trial court) the following morning for arraignment. At the time of the arraignment, he appeared with his lawyer, entered a plea of not guilty to the charge, and orally requested, through his attorney, that he be granted a jury trial. The evidence reflects that the request was denied because it was not in compliance with the rules of practice previously promulgated by the trial court, in particular Rule XII (c), which reads: "Parties desiring jury trials in criminal cases must request the same in writing at the time of arraignment or no later than 14 days prior to the time the case has initially been set for trial by the Court." (Emphasis supplied.) Thereafter, on November 16, 1978, Gerber's counsel filed a written request for jury trial. However, the case had already been set for November 29, 1978, and therefore the trial court denied the request because it was not within time as prescribed by Rule XII (c). On November 28, 1978, the matter was continued until December 20, 1978, whereupon trial was had to the trial court.

Rikli appeared and testified concerning his observance of Gerber on the night in question and the administration of the preliminary test. Counsel for Gerber objected to any testimony concerning the pretest on the grounds that there was not sufficient foundation offered. The objection was overruled.

Rikli then testified that he placed Gerber under arrest and brought him to the Lincoln police station.

Sexton was then called by the State and testified concerning how he administered the Breathalyzer test to Gerber. Gerber's counsel again objected on the basis that, as with the pretest, the results of the Breathalyzer were not admissible in evidence because of insufficient foundation. It is clear from the record that Gerber's objection was based upon the fact that Sexton was unable to testify whether the Breathalyzer was working properly when the test was administered.

Sexton then described how the test was administered. Specifically, he testified that the standard test procedure, which he had followed, requires one to wait for at least 15 minutes after the subject's last drink or smoke. The machine is then activated by switching it into the "operate" position. A steady green light comes on. At that time, the digital reading is .000. The operator then opens a valve and purges the machine for 10 seconds. He then attaches to that valve an ampul containing a measured concentration of ethyl alcohol, referred to as a "NALCO Standard." The concentration of ethyl alcohol is printed on the outside of the ampul. If the machine is operating correctly, it will produce a digital reading equal to the number placed on the outside of the ampul. In this way, the operator verifies that the machine is properly operating and is properly reporting alcohol content. After checking the machine with the NALCO standard, the operator clears the machine, attaches a clean mouthpiece, and requests the subject to blow into the mouthpiece as long as possible. The subject's breath is then analyzed by the machine and the digital readout is recorded.

Sexton testified that he had demonstrated this technique to the Nebraska Department of Health and had obtained a permit from them to perform the test. The State, over objection, offered the permit in evidence. The permit was a piece of paper issued by the Nebraska Department of Health authorizing Edward E. Sexton to perform determinations for body fluid alcohol content by use of an "Intoximeter G.C. (direct breath) 'Alert' and Alco-Sensor preliminary breath test." The permit was issued on October 24, 1977, and would expire on March 1, 1979. The permit bore the signatures of Henry D. Smith, Director of Health, and H. E. McConnell, Director of Laboratories. The trial court overruled the objection and received the permit in evidence. Sexton testified on direct examination that the result of the test on Gerber he had...