State v. Kubik
| Decision Date | 15 June 1990 |
| Docket Number | No. 89-805,89-805 |
| Parties | STATE of Nebraska, Appellee, v. Rick L. KUBIK, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Drunk Driving. Driving is not a fundamental right, and drunk drivers are not a suspect class for purposes of legislative classification.
2. Constitutional Law: Drunk Driving. The line drawn between drivers who are drunk and drivers who are sober is one rationally related to a legitimate governmental end.
3. Constitutional Law: Statutes: Presumptions: Proof. Statutes are presumed to be constitutional, and the burden of establishing unconstitutionality is on the party attacking the validity of the statute. Unconstitutionality must be clearly established before a statute will be declared void.
4. Drunk Driving: Proof. A violation of Neb.Rev.Stat. § 39-669.07 (Supp.1987) is one offense which may be proven in different ways.
5. Drunk Driving: Proof: Blood, Breath, and Urine Tests. A person's breath alcohol concentration may be probative of impairment under subsection (1), as well as proof of a violation of Neb.Rev.Stat. § 39-669.07 (Supp.1987) based solely on breath alcohol concentration pursuant to subsection (3).
6. Constitutional Law: Drunk Driving: Blood, Breath, and Urine Tests. Proscribing a particular concentration of breath alcohol is not wholly irrelevant to achieving the purpose of prohibiting people from driving while under the influence of drugs or alcohol. The relationship between the classification and its goal is rational.
7. Drunk Driving: Blood, Breath, and Urine Tests: Proof. The State is not required to demonstrate a conclusive nexus between the test result and the defendant's breath alcohol content at the precise time he was driving before the test can be admitted as prima facie evidence that the defendant was intoxicated while driving.
8. Drunk Driving: Blood, Breath, and Urine Tests: Time: Proof. A test exhibiting a breath alcohol content of ten-hundredths of 1 gram or more by weight per 210 liters of breath, taken within a reasonable period of time following the defendant's operation of the motor vehicle, may be prima facie evidence of the defendant's intoxication while operating the motor vehicle.
9. HDrunk Driving: Blood, Breath, and Urine Tests: Time. Matters of delay between driving and testing go to the weight of the breath test results, rather than to the admissibility of the evidence. A valid breath test given within a reasonable time after the accused was stopped is probative of a violation of Neb.Rev.Stat. § 39-669.07 (Supp.1987).
Clarence E. Mock of Johnson and Mock, Oakland, for appellant.
Robert M. Spire, Atty. Gen. and Donald E. Hyde, Lincoln, for appellee.
After a jury trial, the defendant, Rick L. Kubik, was convicted of driving under the influence of alcoholic liquor, third offense, in violation of Neb.Rev.Stat. § 39-669.07 (Supp.1987). This statute has since been amended. He was sentenced to 3 months' confinement in the county jail, was fined $500, and a 15-year revocation of his operator's license was ordered.
The record shows that at approximately 3:50 a.m. on June 19, 1988, the defendant was stopped by a West Point police officer within the city limits of West Point, Nebraska, after the officer observed the defendant's vehicle weaving from side to side. Both the defendant and the arresting officer exited their vehicles. The defendant appeared to have trouble with his balance, and the officer saw that the defendant's face was flushed. The officer also noticed a strong odor of alcohol about the defendant. The defendant failed three field sobriety tests and told the officer he had been drinking to the point where he wanted to stop and sleep. The defendant was arrested and taken to the West Point police station. A test of the defendant's breath was conducted at 4:33 a.m. using an Intoxilyzer Model 4011AS device. The Intoxilyzer showed a reading of .139.
The defendant was charged with "Driving While Under The Influence Of Alcoholic Liquor (Breath Test) (Third offense)," in violation of subsections (1) or (3) of § 39-669.07. Section 39-669.07 provided in part:
It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
(1) While under the influence of alcoholic liquor or of any drug;
(2) When such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood;
(3) When such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath; or
(4) When such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her urine.
The defendant moved to quash the complaint, claiming that § 39-669.07 violated the equal protection clauses of the U.S. and Nebraska Constitutions. The motion was overruled, and the defendant was convicted as charged. The judgment of the county court was affirmed by the district court on July 6, 1989.
The defendant has timely appealed to this court and contends the trial court erred (1) in failing to sustain his motion to quash the complaint, (2) in admitting into evidence the results of the Intoxilyzer breath test given to the defendant after his arrest, and (3) in giving jury instruction No. 10.
U.S. Const. amend. XIV, § 1, provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." Neb. Const. art. III, § 18, deals with disparate treatment by special legislation. Porter v. Jensen, 223 Neb. 438, 390 N.W.2d 511 (1986).
The defendant claims that § 39-669.07(2) to (4), as applied, violated his right to equal protection under the law by arbitrarily subjecting him to a different standard of proof than other similarly situated drivers. He contends that the Legislature "has simply subjected [him] and other similarly situated persons accused of violating [§ 39-669.07(2) to (4) ] to different standards of proof and different procedural safeguards without any rational connection to prosecuting intoxicated drivers." Brief for appellant at 14. He further insists that the guilt or innocence of the driver is determined largely by the arbitrary selection of testing methods by the arresting law enforcement official.
Equal protection guarantees that similar persons will be dealt with similarly by the state, but does not foreclose the state from classifying persons or from differentiating one class from another when enacting legislation. State v. Michalski, 221 Neb. 380, 377 N.W.2d 510 (1985). The standard of review used by courts when reviewing statutes challenged on equal protection grounds depends upon the nature of the classification and the rights affected. If the classification involves either a suspect class or fundamental rights, courts will analyze the statute with strict scrutiny. Under this test, the end the Legislature seeks to effectuate must be a compelling state interest, and the means employed in the statute must be such that no less restrictive alternative exists. Id.
However, driving is not a fundamental right, and drunk drivers are not a suspect class for purposes of legislative classification. State v. Michalski, supra; Porter v. Jensen, supra.
Consequently, it is not necessary that the end the Legislature seeks to effectuate with respect to drunk drivers be a compelling state interest and that the means employed to accomplish that end be such that no less restrictive alternative exists. All that is required is that there be a rational relationship between a legitimate state interest and the statutory means selected by the Legislature to accomplish that purpose.
Porter v. Jensen, supra at 444, 390 N.W.2d at 515-16; State v. Michalski, supra.
In State v. Michalski, supra at 388, 377 N.W.2d at 516, we concluded that "the classification made in § 39-669.07 [Reissue 1984], that is, the line drawn between drivers who are drunk and drivers who are sober, is one rationally related to a legitimate governmental end." The same is true of § 39-669.07 (Supp.1987).
Statutes are presumed to be constitutional, and the burden of establishing unconstitutionality is on the party attacking the validity of the statute. State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989). Unconstitutionality must be clearly established before a statute will be declared void. Id.
This court has for many years characterized a violation of § 39-669.07 or its predecessors as one offense which may be proven in different ways. See, e.g., State v. Diesing, 231 Neb. 132, 435 N.W.2d 190 (1989) (§ 39-669.07 (Supp.1987)); State v. Babcock, 227 Neb. 649, 419 N.W.2d 527 (1988) (§ 39-669.07 (Cum.Supp.1986)); State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987) (§ 39-669.07 (Reissue 1984)); State v. Tomes, 218 Neb. 148, 352 N.W.2d 608 (1984) (§ 39-669.07 (Reissue 1984)); State v. Hilker, 210 Neb. 810, 317 N.W.2d 82 (1982) (§ 39-669.07 (Cum.Supp.1980)); State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977), overruled on other grounds, State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980) (§ 39-669.07 (Reissue 1974)); State v. Weidner, 192 Neb. 161, 219 N.W.2d 742 (1974) (§ 39-727 (Cum.Supp.1972)).
A person's breath alcohol concentration may be probative of impairment under subsection (1), as well as proof of a violation of § 39-669.07 (Supp.1987) based solely on breath alcohol concentration pursuant to subsection (3). See, State v. Schwade, 177 Neb. 844, 131 N.W.2d 421 (1964); Vore v. State, 158 Neb. 222, 63 N.W.2d 141 (1954); State v. McManus, 152 Wis.2d 113, 447 N.W.2d 654 (1989). The defendant has not established that proscribing a particular concentration of breath alcohol is wholly irrelevant to achieving the purpose of prohibiting people from...
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