State v. Howard
| Decision Date | 12 December 1997 |
| Docket Number | No. S-96-741,S-96-741 |
| Citation | 253 Neb. 523,571 N.W.2d 308 |
| Parties | STATE of Nebraska, Appellee, v. James Michael HOWARD, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. On questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court.
2. Criminal Law: Motor Vehicles: Evidence: Proof. Where evidence of speed is adduced not to establish a driver's rate of travel so as to prove a charge that he exceeded a particular speed limit, but, rather, as one piece of evidence tending to establish that the driver operated a vehicle in such a manner as to indicate an indifferent or wanton disregard for the safety of persons or property, the speed is not "at issue," as contemplated by Neb.Rev.Stat. § 60-6,192 (Reissue 1993), and therefore need not be corroborated by a microwave, mechanical, or electronic speed measurement device.
3. Drunk Driving: Blood, Breath, and Urine Tests. The preliminary test authorized by Neb.Rev.Stat. § 60-6,197(3) (Reissue 1993) and the later chemical test authorized by Neb.Rev.Stat. § 60-6,197(1) (Reissue 1993) are separate and distinct tests.
4. Blood, Breath, and Urine Tests. The refusal to submit to a preliminary breath test is a separate criminal offense from refusal to submit to a chemical test.
5. Drunk Driving: Blood, Breath, and Urine Tests. The preliminary test referred to in Neb.Rev.Stat. § 60-6,197(3) (Reissue 1993) is a different procedure and not such a chemical test or chemical analysis as to satisfy the requirements for a conviction under § 60-6,197(4).
6. Drunk Driving: Blood, Breath, and Urine Tests. A preliminary test is administered merely to determine whether alcohol is present in a driver's breath; a chemical test is administered to determine whether the amount of alcohol in a driver's breath or blood exceeds the limits permitted by Neb.Rev.Stat. § 60-6,196 (Reissue 1993).
7. Police Officers and Sheriffs: Drunk Driving: Witnesses. After sufficient foundation is laid, a law enforcement officer may testify that in his or her opinion a defendant was driving while intoxicated.
8. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence.
9. Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
Casey J. Quinn, of Quinn & Wright, Omaha, for appellant.
Don Stenberg, Attorney General, and David T. Bydalek, Lincoln, for appellee.
Pursuant to verdict, the county court adjudged the defendant-appellant, James Michael Howard, guilty of refusal to submit to a preliminary breath test and of second-offense driving under the influence of alcohol, both in violation of Neb.Rev.Stat. § 60-6,197 (Reissue 1993), and of reckless driving, in violation of Neb.Rev.Stat. § 60-6,213 (Reissue 1993). The district court affirmed. The Nebraska Court of Appeals affirmed the refusal to submit and driving under the influence convictions, but by a divided opinion reversed the reckless driving conviction. State v. Howard, 5 Neb.App. 596, 560 N.W.2d 516 (1997). We granted further review on the separate petitions filed by Howard and the plaintiff-appellee, State of Nebraska. Howard asserts, in summary, that the Court of Appeals erred in failing to find that the district court erred in failing to find that the county court erred in (1) admitting certain evidence and (2) finding the evidence sufficient to support the refusal to submit and driving under the influence convictions. The State urges that the Court of Appeals erred in reversing the reckless driving conviction. We affirm in part and in part reverse the judgment of the Court of Appeals and remand the cause with direction.
On August 18, 1995, at approximately 7 p.m., Vance Vogler was eastbound on Interstate 80 near Lincoln. He was driving in the left, or passing, lane when a green Jeep Cherokee came up behind him and began following him very closely. Vogler slowed down in an attempt to encourage the Jeep to give him a little more room; however, the Jeep continued to follow him closely, so that at the first opportunity Vogler pulled over into the right lane. After the Jeep had passed, Vogler observed it move abruptly into the right lane and cut off a minivan, causing the driver of that vehicle to slam on her brakes and swerve onto the shoulder of the Interstate. After observing this near collision, Vogler used a cellular telephone to report the behavior of the driver to the Nebraska State Patrol. Vogler further testified that the Jeep pulled away from him rapidly even though Vogler was driving 65 miles per hour, then the legal speed limit.
State Trooper Mark Funkhouser testified that he was driving west on Interstate 80 when, at approximately 7:30 p.m., he received an assignment to watch for a dark green Jeep Cherokee, about which the State Patrol had received citizen complaints. Funkhouser proceeded west until he met a group of vehicles which included the described Jeep. Several drivers in the group were flashing their vehicle headlights, and some were pointing forward toward the Jeep. Funkhouser noticed at that time that the Jeep was following a white van at a distance of about half the length of the Jeep. Funkhouser turned his vehicle around and proceeded east, following the group of vehicles that included the Jeep. At that point, Funkhouser saw the Jeep change from the left lane to the right lane, cutting off another vehicle as it did so. The Jeep then passed a semitrailer truck by driving onto the right shoulder of the Interstate. After first warning the truckdriver by radio, Funkhouser also passed the truck on the shoulder. At this point, Funkhouser visually estimated that the Jeep was traveling at around 100 miles per hour. Funkhouser was able to catch up with the Jeep and pull it over by driving "as hard as my car would run," 122 miles per hour.
Funkhouser turned on his flashing lights, and the Jeep stopped. The driver, who was later identified as Howard, got out of the vehicle and in the process "kind of swayed out towards the highway." Funkhouser detected a strong odor of alcohol, placed Howard under arrest for reckless driving, handcuffed him, and placed him in the patrol vehicle. Funkhouser then noticed that the smell of alcohol was coming from Howard's breath and not from his vehicle and that Howard's eyes were quite watery. As a field sobriety test, Howard was asked to recite the alphabet. He did so twice; his speech was slurred, and he skipped the letter "W" both times.
Howard refused to take a preliminary breath test, stating that "he had three drinks and he didn't have anything to eat that day and he knew that the device would detect the alcohol." Based upon Funkhouser's training, education, and experience, and upon Howard's erratic driving, slurred speech, red watery eyes, strong odor of alcohol on his breath, sway in his walk, and general demeanor, Funkhouser concluded that Howard was intoxicated.
In connection with the first assignment of error, Howard asserts that the county court wrongly received Funkhouser's opinion as to Howard's speed of travel, Funkhouser's testimony as to Howard's refusal to submit to a preliminary breath test, and Funkhouser's opinion that Howard was intoxicated. The issues raised by the first two assertions present questions of law, in connection with which an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court. State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996); State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996). The issue raised by the third assertion, whether Funkhouser should be considered an expert or a lay witness, see State v. Johnson, 215 Neb. 391, 338 N.W.2d 769 (1983), is reviewed for an abuse of discretion. Neb.Rev.Stat. §§ 27-701 and 27-702 (Reissue 1995); State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997) (); Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871, 468 N.W.2d 350 (1991) ().
Howard first argues that the county court erred in allowing Funkhouser to testify about Howard's speed without the corroboration of a microwave, mechanical, or electronic speed measurement device as required by Neb.Rev.Stat. § 60-6,192 (Reissue 1993), which provides, in relevant part:
Determinations made regarding the speed of any motor vehicle based upon the visual observation of any peace officer, while being competent evidence for all other purposes, shall be corroborated by the use of a radio microwave, mechanical, or electronic speed measurement device. The results of such radio microwave, mechanical, or electronic speed measurement device may be accepted as competent evidence of the speed of such motor vehicle in any court or legal proceeding when the speed of the vehicle is at issue.
"Reckless driving" is defined in § 60-6,213 as driving any "motor vehicle in such a manner as to indicate an indifferent or wanton disregard for the safety of persons or property...."
We have determined that while speed alone does not support a conviction for "willful reckless driving," which is defined in Neb.Rev.Stat. §...
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