State v. Jacobitz, No. A-06-824 (Neb. App. 2/27/2007)
| Decision Date | 27 February 2007 |
| Docket Number | No. A-06-824.,A-06-824. |
| Parties | STATE OF NEBRASKA, APPELLANT, v. CURTIS R. JACOBITZ, APPELLEE. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Kearney County: STEPHEN ILLINGWORTH, Judge. Affirmed.
David G. Wondra, Kearney County Attorney, for appellant.
Arthur R. Langvardt, of Langvardt & Valle, P.C., for appellee.
Following a fatality accident but prior to an arrest, blood was drawn from Curtis R. Jacobitz. A sample of blood was sent in to be tested for statistical purposes, and results were received. Months later, the peace officer requested a second test of Jacobitz' blood, using the original blood draw. Upon Jacobitz' motion to suppress and motion in limine, the district court found that the blood sample was not voluntarily given and that the results of neither blood test could be used at trial. The State appeals to a single judge of this court under Neb. Rev. Stat. § 29-824 (Cum. Supp. 2006). I conclude that the plain language of Neb. Rev. Stat. § 60-6,105 (Reissue 2004) requires exclusion of the first blood test results and that the results of the second blood test must be suppressed because the peace officer lacked reasonable grounds to believe that Jacobitz drove his vehicle while under the influence of alcohol such as to support the taking of a blood sample under the implied consent law.
On the afternoon of August 26, 2005, Jacobitz became involved in a motor vehicle accident while operating a pickup truck, which accident caused a fatality and occurred outside the Minden city limits in Kearney County, Nebraska. On that day, the Minden chief of police, James Huff, received a call at approximately 2 p.m. to assist with the accident, and he began directing traffic upon arriving at the scene of the accident. A deputy with the sheriff's office testified that he wrote in his report that he directed Huff to obtain "a statistical blood sample" from Jacobitz at the hospital. Huff testified that the deputy directed Huff to get a blood sample "[j]ust because of the fatality accident."
On Huff's way to the hospital, he picked up a blood test kit and an implied consent form at the police department. Huff testified that he always reads the implied consent form "where it's an accident or possible D.W.I." because of the possibility of a resulting arrest. Huff testified that once at the hospital, he observed Jacobitz lying on the emergency room bed and being hysterical. Huff testified that when he asked Jacobitz for his middle initial, Huff smelled an odor of an alcoholic beverage coming from Jacobitz' mouth. Huff then read Jacobitz the implied consent form. The "Post Arrest Chemical Test Advisement" form received into evidence is not signed by Jacobitz. The laboratory technician drew a sample of Jacobitz' blood, and Huff took the sample back to the police department. Huff testified that he did not physically place Jacobitz under arrest even though the postarrest chemical test advisement form stated that the subject was under arrest.
The form that Huff completed to be sent with the blood sample contained boxes labeled "DWI," "ZERO TOLERANCE," and "FATALITY." The "FATALITY" box contained a checkmark. A box labeled "This sample is being submitted as part of a law enforcement investigation and de-identified information cannot be reasonably used" did not contain a checkmark, but a checkmark was placed in the box labeled "This sample is being submitted as part of the Fatal Accident Reporting System Neb. Rev. Stat. [§] 60-6102 et. seq." The form shows that the sample was collected on August 26, 2005, and received on August 29. Huff testified that he submitted the blood sample for statistical purposes and for the possibility of an arrest for driving under the influence.
Huff testified that the county attorney's office later requested that Huff have a second test performed. On or about December 27, 2005, Huff filled out another form requesting a blood test. This form shows that the sample was collected on August 26, was received on December 29, and was tested on December 30. On this form, Huff placed a checkmark in the box labeled "This sample is being submitted as part of a law enforcement investigation and de-identified information cannot be reasonably used." Huff did not submit a blood sample with this form. He testified that to the best of his knowledge, the blood sample originally submitted was still in the possession of the Nebraska Department of Health and Human Services laboratory.
An information filed January 18, 2006, charged Jacobitz with manslaughter. On February 14, Jacobitz filed a "Motion for Suppression of Evidence and Motion in Limine," arguing that the use of a blood sample taken for statistical purposes and in the absence of an arrest for driving under the influence would violate Jacobitz' constitutional and statutory rights. Jacobitz also argued that the results of later testing on the blood obtained August 26, 2005, should not be admissible. Jacobitz sought an order suppressing the use of the blood testing results as evidence at the trial and also a ruling that the same be inadmissible at the trial.
On June 22, 2006, the district court filed its order sustaining the motion to suppress. The court found that the results of the first blood test were clearly inadmissible under § 60-6,105. With regard to the second blood test, the district court stated that there must be an arrest for driving under the influence supported by probable cause prior to the request for a blood sample. The district court noted that Huff did not arrest Jacobitz, that Huff read the implied consent form which Jacobitz did not sign, that Huff did not place Jacobitz in custody, and that Huff did not advise Jacobitz of his Miranda rights. The court found that the test was not voluntarily given and that the defect was not cured by sending in another request for a blood test months after the accident.
The State timely appeals.
The State alleges that the district court erred (1) in sustaining Jacobitz' motion to suppress, (2) in finding that the results of Jacobitz' first blood test were inadmissible, and (3) in finding that there must be an arrest for driving under the influence supported by probable cause prior to the request for a blood sample under the implied consent law, when there has been a fatal motor vehicle accident and the odor of alcohol is detected on the driver's breath.
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court's decision. Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006).
A trial court's ruling on a motion to suppress based on the Fourth Amendment, apart from determinations of reasonable suspicion to conduct investigative stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005).
To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).
Jacobitz filed a motion for suppression of evidence and motion in limine, arguing that the use of a blood sample taken for statistical purposes and in the absence of an arrest for driving under the influence would violate Jacobitz' constitutional and statutory rights. He sought an order suppressing the use of the blood testing results as evidence at the trial and also a ruling that the same be inadmissible at the trial. The district court's decision is broken into two parts: the first blood test and the second blood test. The district court's decision on the first blood test seems to be grounded on a statutory basis, while its decision on the second blood test is based explicitly on constitutional grounds.
Jurisdiction.
It is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006). The right of appeal is statutory and the requirements of a particular statute are mandatory and must be complied with before the appellate court acquires jurisdiction of the subject matter of an action. Karnes v. Wilkinson Mfg., 220 Neb. 150, 368 N.W.2d 788 (1985). Further, statutes which are in derogation of the common-law traditions of criminal procedure are to be strictly construed. See State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998).
Section 29-824 is in derogation of the common law. The intent of the statute was explained in State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974), where the court referred to a statutory scheme established by § 29-824 and Neb. Rev. Stat. § 29-822 (Reissue 1995), giving the State the right to appeal from an order sustaining a motion to suppress. The Pope court said that if the State, after once prevailing on the motion to suppress, were again required to prove the legality of the search at trial, the State's right under § 29-824 to bring an appeal before jeopardy attached would be defeated in many cases. The court also indicated that it was impressed with the provisions of § 29-822, which provide that unless a pretrial motion to suppress is made, objections to the use of seized property as evidence on the ground that it was obtained by an unlawful search and seizure shall be deemed waived. The court in Pope said it was clear that the purpose of the scheme was to avoid interference with the progress of the trial by freeing the trial court from the necessity of determining the collateral issue of the legality of searches during the trial itself. In determining whether I have jurisdiction to consider the first part of the district court's decision, I...
To continue reading
Request your trial