State v. Haile
| Decision Date | 10 April 1970 |
| Docket Number | No. 37341,37341 |
| Citation | 176 N.W.2d 232,185 Neb. 421 |
| Parties | STATE of Nebraska, Appellee, v. Ruby C. HAILE, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In the absence of objection in the trial court, a defendant may not be heard to complain of a lack of sufficient foundation for admission into evidence of the results of breathalizer tests.
2. A complaint charging a statutory misdemeanor substantially in the language of the statute, will be liberally rather than technically construed, and if a defect is amendable, it will be held sufficient on appeal in the absence of objection in the trial court.
Kelly & Kelly, Grand Island, for appellant.
Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
The defendant, Ruby C. Haile, was found guilty by a jury of operating a motor vehicle while under the influence of alcoholic liquor, and on a second count of abusing an officer while in the execution of his office. On Count I, the defendant was sentenced to pay a fine of $100 and her driver's license was suspended for 6 months. On Count II, the defendant was sentenced to 5 days in the Hall County jail.
The defendant's first assignment of error is that the evidence as to breathalizer tests was incompetent because the record did not show that the method or equipment had been approved by the Department of Health as provided by statute. Testimony by the State established that Captain Bacon, the officer administering the breathalizer tests, had a license issued by the State as a breathalizer operator, and also identified the type and make of the test machine. The evidence does not affirmatively and directly show that the breathalizer method was approved by the Department of Health.
On direct testimony, Captain Bacon testified that an attempt to give a breathalizer test after the defendant's arrival at the police station was unsuccessful because the defendant did not blow sufficient breath into the equipment to permit any test analysis. The defendant's counsel, on cross-examination, elicited the fact that a second breathalizer test, taken more than an hour and a half after defendant's arrest showed .14 percent of alcohol. There was no objection to the introduction of any of the testimony with respect to the breathalizer tests, nor was the point raised in the motion for new trial.
It is obvious that the defendant cannot properly object to testimony as to test results when the defendant elicited the testimony. It is also apparent that if defendant was not satisfied with the foundation laid for the State's evidence and testimony as to breathalizer tests, objections should have been made at the time and on that ground. In the absence of objection in the trial court, a defendant may not be heard to complain of a lack of sufficient foundation for admission into evidence of the results of breathalizer tests. See Dietze v. State, 162 Neb. 80, 75 N.W.2d 95, as to radar speed evidence. In addition, the issue was not raised in a motion for new trial and will not be considered now. See Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853. It should also be pointed out that there was ample evidence, entirely aside from any breathalizer test results, upon which the jury could and did find the defendant guilty on Count I.
There was also ample evidence to establish that the defendant verbally and physically abused the arresting officer, kicked him, and scratched his face. The defendant, however, now contends for the...
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Mandery v. Chronicle Broadcasting Co.
...v. Co. of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984); In re Estate of Hill, 214 Neb. 702, 335 N.W.2d 750 (1983); State v. Haile, 185 Neb. 421, 176 N.W.2d 232 (1970); Bland v. Fox, 172 Neb. 662, 111 N.W.2d 537 (1961). Cf. State v. Roggenkamp, 224 Neb. 914, 921, 402 N.W.2d 682, 687 (1987): ......
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State v. Jablonski
...other than the results of the breath test, as described above, was sufficient to sustain defendant's conviction. See, State v. Haile, 185 Neb. 421, 176 N.W.2d 232 (1970); State v. Schwade, 177 Neb. 844, 131 N.W.2d 421 (1964); State v. Lewis, 177 Neb. 173, 128 N.W.2d 610 (1964). Section 39-6......
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State v. Miller
...examining the specific facts of a case to determine whether a charging document was constitutionally sufficient. In State v. Haile, 185 Neb. 421, 176 N.W.2d 232 (1970), the defendant was charged with abusing an officer. The defendant alleged that the charging complaint was fatally defective......
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State v. Seger, 39063
...in a motion for new trial will not be considered on appeal. State v. Stanosheck, 186 Neb. 17, 180 N.W.2d 226 (1970); State v. Haile, 185 Neb. 421, 176 N.W.2d 232 (1970). This is not a case where any issue was presented as to an interpretation of the contents of a motion for new trial. As we......