State v. Lichti

• Decision Date: 10 May 1985
• Docket Number: No. 84-437,84-437
• Citation: 219 Neb. 894,367 N.W.2d 138
• Parties: STATE of Nebraska, Appellee, v. Alan L. LICHTI, Appellant.
• Court: Nebraska Supreme Court

Page 138

367 N.W.2d 138

219 Neb. 894

STATE of Nebraska, Appellee, v. Alan L. LICHTI, Appellant.

No. 84-437.

Supreme Court of Nebraska.

May 10, 1985.

Syllabus by the Court

1. Drunk Driving: Appeal and Error. In drunk driving cases it is not the province of this 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 trier of fact. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Drunk Driving: Evidence: Proof. Either a law enforcement officer's observations of defendant's intoxicated behavior or the defendant's poor performance on field sobriety tests constitutes sufficient evidence to sustain a conviction of driving while under the influence of alcoholic beverages.

3. Criminal Law: Motor Vehicles: Police Officers and Sheriffs. One who drives in response to the lawful order of a law enforcement officer engages in privileged conduct and may not be punished for so doing.

Jeffrey H. Jacobsen, Buffalo County Public Defender, for appellant.

A. Eugene Crump, Deputy Atty. Gen., and Timothy E. Divis, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Defendant, Alan L. Lichti, was charged in the county court with second offense driving while under the influence of alcohol. He pled not guilty but was convicted following a bench trial. He was thereupon sentenced to jail for a period of 30 days, fined $500, had his driver's license suspended for 1 year, and was assessed costs. The conviction and sentence were thereafter affirmed by the district court. Lichti assigns as error to the district court (1) the failure to find the evidence insufficient to support the conviction; (2) the failure to find he was legally justified in driving, since he was doing so at the behest of a law enforcement officer; and (3) the failure to find that the trial court erred in not advising him of his rights under Neb.Rev.Stat. § 39-669.07(3) (Reissue 1984). Although we find the evidence sufficient to support the finding that Lichti was driving while under the influence of alcohol, we agree with his contention that the conviction and sentence cannot stand, as his driving was, under the circumstances, privileged. In view of that determination we do not consider his third assignment of error. The cause is reversed and remanded with the direction that the charge be dismissed.

In the early morning hours of July 27, 1983, Officer Larsen of the Kearney Police Department responded to a call reporting an unwanted person at the home of Lichti's brother, located on East 47th Street. When Larsen arrived, he found Lichti standing beside his car, which was parked, possibly with the motor running, on the south side of 47th Street, facing west, near his brother's residence.

Larsen testified that he talked with Lichti for approximately 3 to 4 minutes from a distance of 3 to 4 feet and, although he could recall no odor of alcohol, concluded that Lichti had been drinking because his speech was slurred and he did not always make sense, although not making sense did not appear to Larsen to be unusual for Lichti.

Larsen did not believe Lichti to be intoxicated to the point that his driving ability was impaired, and administered no field sobriety tests. Larsen testified on direct examination that he told Lichti he was not welcome at his brother's house and "requested that he leave and go straight home." On cross-examination Larsen answered affirmatively to the question "And you requested that he get into his car and drive home?"

Lichti thereupon drove west of 47th Street to a cul-de-sac, turned around and went east to Avenue N, made a U-turn, drove past his brother's house, and made another U-turn at Avenue L. At this point Officer Colling, who had been called as support for Larsen, stopped Lichti because he had seen Lichti drive over the street curb twice while traveling as described above.

Colling testified that Lichti had slurred speech, swayed when he walked, had a flushed face, and had an odor of alcohol on his breath. Colling asked Lichti to perform a number of field sobriety tests. Lichti was asked to touch the tip of his nose with both his right and left index fingers, but instead touched the side or bottom of his nose. Next, Lichti was asked to take five steps forward, touching the heel of one foot to the toe of the other, then turn around and take six steps back in the same manner. Lichti had difficulty maintaining his balance with this test, staggering and stopping periodically to regain his balance. Lichti's explanation at trial was that he was wearing cowboy boots at the time, which had pointed toes and slanted heels, causing him to do poorly on this particular test.

Lichti was also asked to pick up some keys from the pavement while standing on one leg and raising the other. When he bent over to pick up the keys, he lost his balance, fell to the left, spun around, and was not able to complete the test. Colling then asked Lichti for his driver's license and registration, but was handed some business cards instead.

Colling testified that in his opinion Lichti was driving while under the influence of alcohol, and consequently undertook to arrest him. Lichti resisted Colling's efforts to transport him to the sheriff's office, but with the assistance of two other officers, the arrest was completed.

A corrections officer who observed Lichti after the arrest testified that in his opinion Lichti was intoxicated.

Lichti testified that during a 4 1/2-hour span on that evening, he had drunk four beers and a whiskey sour and had a six-pack of beer with him in the car.

As to the first assignment of error, Lichti contends that since the testimony of...