State v. Hiemstra

• Decision Date: 05 May 1998
• Docket Number: No. A-97-526,A-97-526
• Citation: 6 Neb.App. 940,579 N.W.2d 550
• Parties: STATE of Nebraska, Appellee, v. Russell J. HIEMSTRA, Appellant.
• Court: Nebraska Court of Appeals

Page 550

579 N.W.2d 550

6 Neb.App. 940

STATE of Nebraska, Appellee, v. Russell J. HIEMSTRA, Appellant.

No. A-97-526.

Court of Appeals of Nebraska.

May 5, 1998.

Syllabus by the Court

1. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of the appellate 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, and the verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Judgments: Appeal and Error. With regard to questions of law, an appellate court is obligated to reach a conclusion independent of the decision reached by the trial court.

3. Probable Cause: Appeal and Error. Determinations of reasonable suspicion and probable cause are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.

4. Motions to Suppress: Appeal and Error. In reviewing the trial court's ruling on a motion to suppress, an appellate court considers all the evidence from the trial as well as from the hearing on the motion.

5. Criminal Law: Investigative Stops: Police Officers and Sheriffs: Probable Cause. The test to determine if an investigative stop was justified is whether the police officer had a reasonable suspicion, based on articulable facts, which indicated that a crime had occurred, was occurring, or was about to occur and that the suspect might be involved.

6. Motor Vehicles: Investigative Stops: Police Officers and Sheriffs: Probable Cause. When an officer observes a traffic offense---however minor--he has probable cause to stop the driver of the vehicle.

7. Criminal Law: Motor Vehicles: Police Officers and Sheriffs: Testimony: Corroboration. When testimony regarding speed is used to establish some charge other than speeding, the officer's testimony need not be corroborated.

8. Trial: Evidence: Blood, Breath, and Urine Tests. The drawing of blood and the admissibility of test results are controlled by Neb.Rev.Stat. § 60-6.201 (Reissue 1993).

9. Administrative Law: Licenses and Permits: Health Care Providers: Blood, Breath, and Urine Tests. To be considered valid, tests of blood shall be performed according to methods approved by the Department of Health and by an individual possessing a valid permit issued by such department for such purpose, except that a physician, registered nurse, or other trained person employed by a licensed institution or facility which is statutorily defined may withdraw blood for the purpose of a test to determine the alcohol concentration.

10. Rules of Evidence: Witnesses: Testimony. Pursuant to Neb. Evid. R. 602, Neb.Rev.Stat. § 27-602 (Reissue 1995), a witness may not testify to something of which the witness has no personal knowledge.

11. Drunk Driving: Police Officers and Sheriffs: Blood, Breath, and Urine Tests. While the police cannot hamper a motorist's efforts to obtain independent testing, they are under no duty to assist in obtaining such testing beyond allowing telephone calls to secure the test.

12. Blood, Breath, and Urine Tests: Witnesses: Testimony. A competent witness must establish where the NALCO calibration standard used to determine if a Breathalyzer machine is operating correctly came from, how it was received, under what conditions it was kept and preserved, and what spot checks were made to determine its validity.

13. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law; (2) the tendered instruction is warranted by the evidence; and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

14. Jury Instructions: Proof: Appeal and Error. In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

15. Jury Instructions: Appeal and Error. Jury instructions must be read as a whole, and if they fairly present the law so that the jury could not be misled, there is no prejudicial error.

16. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

17. Criminal Law: Trial: Juries: Evidence: Convictions: Appeal and Error. After a jury trial where prejudicial evidence was erroneously admitted, if sufficient evidence exists to support the conviction, the cause may be remanded for further proceedings, but if the evidence is not sufficient, the cause must be dismissed.

David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., Kearney, for appellant.

Don Stenberg, Attorney General, Lincoln, and Jay C. Hinsley for appellee.

HANNON, IRWIN and MUES, JJ.

HANNON, Judge.

The appellant, Russell J. Hiemstra, was convicted following a jury trial in Buffalo County Court of driving under the influence (DUI) of an alcoholic liquor or drug. The county court sentenced Hiemstra to 6 months' probation, fined him $250, ordered him to pay court costs, suspended his driving privileges for 60 days, and ordered him to provide the court with written proof of his attendance at an alcohol education class and three Alcoholics Anonymous classes. Hiemstra appealed to the district court, which affirmed the county court's judgment of conviction. Hiemstra now appeals to this court, arguing that his constitutional rights were violated when his vehicle was stopped for speeding and that the trial court erred in admitting the results of his blood test and in instructing the jury as to the meaning of "driving under the influence." We conclude that the initial stop did not violate Hiemstra's constitutional rights and that Hiemstra was not prejudiced by the trial court's refusal to give his suggested jury instruction. However, we find that the trial court erred in admitting the blood test results. Therefore, we affirm the trial court's ruling denying Hiemstra's motion to suppress, but we reverse the conviction and remand the cause for a new trial.

I. FACTUAL BACKGROUND

The following evidence was presented at the hearing on Hiemstra's motion to suppress. At approximately 1:10 a.m. on August 25, 1996, Officer Kevin Thompson, who testified he was trained to visually estimate speed, was patrolling the downtown Kearney, Nebraska, area when he visually observed Hiemstra's vehicle going too fast. Thompson then followed Hiemstra's vehicle, and Thompson's speedometer indicated Hiemstra was driving faster than 45 miles per hour. Thompson estimated that both his and Hiemstra's vehicles were traveling approximately 20 miles over the speed limit.

Thompson testified that he stopped the vehicle and that when he first made contact with Hiemstra, he detected the odor of alcohol and saw beer cans throughout the vehicle as well as two coolers. Thompson also noticed that Hiemstra's speech was slurred. Thompson gave the following testimony:

Q--When you first initiated the traffic stop and approached the vehicle, what did you say to the driver?

A--I asked him if he knew why he was being pulled over.

Q--And how did he respond?

A--He just said that he was being stupid.

Q--And did he say anything further?

A--And I asked him if--what he meant by that and he said because he was speeding.

Both Thompson and Hiemstra returned to the police car, where Hiemstra performed several sobriety tests. Hiemstra was instructed to repeat the letters of the alphabet. Thompson testified that Hiemstra did not commit any letter errors but that there were slurs in his speech. Hiemstra was then asked to count from 20 to 39 and then from 39 back down to 20. Thompson testified there were no numerical errors from 20 to 39, just slurs in Hiemstra's speech. When counting from 39 to 20, Hiemstra stopped at 25, asked Thompson if that was sufficient, and was told to continue as instructed.

Hiemstra was then instructed to stand and raise either foot approximately 3 to 6 inches off the ground and count from 1,001 to 1,030. Thompson told Hiemstra that after completing the test, he was to put his foot down and say "stop." Thompson testified that on his first attempt, Hiemstra put his foot down on the count of 3. On his second attempt, Hiemstra put his foot down on the count of 3, continued, and then put his foot down on the count of 9. On the third attempt, Hiemstra put his foot down on the count of 12. Finally, Hiemstra was instructed to perform the walk-and-turn sobriety test. Thompson testified that Hiemstra missed three heel-to-toe steps on the first set of nine, missed seven of the second set of nine, and did not count out loud as instructed.

Thompson testified that Hiemstra smelled of alcohol and that his eyes were bloodshot, his speech was slurred at times, and his balance and mental state were impaired. Thompson testified that based on his experience as an officer, his training in DUI investigations, and his personal experience with alcohol, he believed that Hiemstra was an impaired driver when he was stopped.

Thompson arrested Hiemstra and drove him to the Good Samaritan Hospital for a blood test. Thompson testified that he read a Miranda form to Hiemstra and asked him if he understood his rights, and that Hiemstra then signed the form. The court received a document showing Thompson's signature as the witnessing officer and Hiemstra's signatures indicating that he both understood and waived his Miranda rights. Thompson testified he asked Hiemstra how much he had to drink and Hiemstra told him he drank four to five cans of beer. Thompson also...