State v. Hilker, 44456

• Decision Date: 12 March 1982
• Docket Number: No. 44456,44456
• Citation: 210 Neb. 810,317 N.W.2d 82
• Parties: STATE of Nebraska, Appellee, v. Eldon L. HILKER, Appellant.
• Court: Nebraska Supreme Court

Page 82

317 N.W.2d 82

210 Neb. 810

STATE of Nebraska, Appellee, v. Eldon L. HILKER, Appellant.

No. 44456.

Supreme Court of Nebraska.

March 12, 1982.

Syllabus by the Court

1. Drunk Driving: Proof. A violation of Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1980) can be proved by showing that the defendant was in physical control of the motor vehicle while under the influence of alcoholic liquor, or of any drug, or when a person has ten-hundredths of one percent or more by weight of alcohol in his or her body fluid.

2. Criminal Law: Evidence: Verdicts. A verdict by a trier of fact in a criminal proceeding will be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

3. Drunk Driving: Convictions. For a conviction to be sustained in a trial for operating a motor vehicle while under the influence of alcohol, it is not necessary for a policeman or any other person to offer an opinion that the defendant was indeed intoxicated.

Mousel & Burger, P. C., McCook, for appellant.

Paul L. Douglas, Atty. Gen., and Dale D. Brodkey, Lincoln, for appellee.

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

WHITE, Justice.

The defendant, Eldon L. Hilker, was found guilty in the county court of Red Willow County, Nebraska, on a charge of driving an automobile while under the influence of alcoholic liquor and of having more than ten-hundredths of one percent by weight of alcohol in his body fluid as shown by chemical analysis of his breath, to wit, sixteen-hundredths of one percent. In his appeal to the District Court, the District Court found that the State had failed to prove sufficient foundation for the admission of the Breathalyzer sample test under the rules of State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980), but found that the evidence was sufficient to sustain the conviction of the defendant for operating a motor vehicle on the highways while under the influence of alcoholic liquor. The defendant was sentenced to a term of 12 months' probation and fined $100. Defendant appeals and assigns as a single error that the evidence was insufficient as a matter of law to sustain the conviction. We affirm.

Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1980) defines one offense which can be proved by any of three ways: (1) By proof that the defendant was in physical control of a motor vehicle while under the influence of alcoholic liquor; (2) By proof that the defendant was in physical control of a motor vehicle while under the influence of any drug; or (3) By proof that the defendant was in physical control of a motor vehicle while having ten-hundredths of one percent or more by weight of alcohol in his or her body fluid. State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977).

A verdict by a trier of fact in a criminal proceeding will be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Carter, 205 Neb. 407, 288 N.W.2d 35 (1980).

Taking a view of the evidence most favorable to the State, the facts are as follows: The defendant was arrested on November 20, 1980, by an officer of the McCook Police Department. The officer observed the defendant's eastbound pickup truck pull up to a stop sign and remain for several minutes without moving. The officer followed the truck which then turned a corner to the left, proceeded to the north, and proceeded to the right, going east again, where the officer observed the pickup traveling through a red light with no observable brake lights or slowing of the vehicle. After the light changed to green, the officer followed the pickup, stopped it, and the defendant was identified as the driver. When the officer stopped the pickup, the defendant got out of his vehicle and walked to the cruiser with slow, short steps and leaning against the box of the pickup. The defendant produced his operator's license and registration, and the officer observed, and testified, that the defendant had an odor of alcoholic beverage on his breath, that his speech was slurred, that he was confused as to whether or not the stoplight through which he had just traveled was red or green, and that his eyes were bloodshot. The officer pointed the flashlight at the defendant and observed that the defendant's eyes were dilated and slow to react. When the defendant returned to the pickup, the officer again observed that he leaned against or used the pickup as a source of balance. A field sobriety test was given to the defendant. The...