State v. Scott, 43032
| Decision Date | 10 June 1980 |
| Docket Number | No. 43032,43032 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Michael E. SCOTT, Appellant. |
Syllabus by the Court
1. Blood, Breath, and Urine Tests: Evidence: Foundation: Drunk Driving. Before the State may offer in evidence the results of a breath test for the purpose of establishing that a defendant was at a particular time operating a motor vehicle while having ten-hundredths of one percent or more by weight of alcohol in his body fluid, the State must prove the following: (1) That the testing device or equipment was in proper working order at the time of conducting the test; (2) That the person giving and interpreting the test was properly qualified and held a valid permit issued by the Nebraska Department of Health at the time of conducting the test; (3) That the test was properly conducted in accordance with a method currently approved by the Nebraska Department of Health; and (4) That there was compliance with all statutory requirements.
2. Criminal Complaints and Informations. An information or complaint must inform the accused with reasonable certainty of the charge against him so that he may prepare his defense and be enabled to plead the judgment as a bar to a later prosecution for the same offense.
Stephen K. Yungblut of Rosenberg & Yungblut, Lincoln, for appellant.
Paul L. Douglas, Atty. Gen., and Shanler D. Cronk, Asst. Atty. Gen., Lincoln, for appellee.
Heard before BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
Defendant, Michael E. Scott, was convicted in the county court of York County of the offense of operating a motor vehicle while having ten-hundredths of one percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath, or urine, second offense, contrary to Neb.Rev.Stat. § 39-669.07 (Reissue 1978). He was sentenced to 60 days in the county jail, fined $300, and had his driver's licenses suspended for 1 year. Defendant appealed to the District Court, which affirmed the conviction and sentence.
On December 29, 1978, a patrolman in York, Nebraska, stopped a pickup truck driven by the defendant for traveling at 36 miles per hour in a 25-mile-per-hour speed zone. When the defendant got out of the pickup, he staggered slightly and had difficulty in getting out his billfold to present his operator's license. The officer detected an odor of alcohol and administered a field sobriety test to the defendant. The defendant had some difficulty touching his finger to his nose and walking toe-to-heel, two portions of the test. In the officer's opinion, the defendant was intoxicated. The officer placed defendant under arrest and had him taken to the sheriff's office where the officer administered a breath test on a gas chromatograph "Intoximeter Mark IV."
The officer detailed the test procedures which he followed. The evidence established that the testing device was in proper working order at the time of the test and that the officer held a current permit from the Nebraska Department of Health to operate breath analysis devices. The evidence failed to establish that the test administered to the defendant was performed according to methods approved by the Nebraska Department of Health, as required by statute. The officer testified that the machine analyzed the defendant's breath and gave both a digital and graph paper reading of .226 alcohol content.
The defendant was convicted by the county court and sentenced to 60 days in the county jail, fined $300, and his operator's license revoked for a period of 1 year.
The defendant contends that the evidence of the test results in the operation of the gas chromatograph did not comply with statutory requirements. During oral argument, the defendant contended that the case is controlled by the very recent case of State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980). That case held that, before the State may offer in evidence the results of a breath test for the purpose of establishing that a defendant was at a...
To continue reading
Request your trial
-
State v. Schneckloth
...must state expressly and directly each fact that is an essential element of the crime intended to be charged. State v. Scott, 206 Neb. 451, 293 N.W.2d 114 (1980). The Nebraska kidnapping statute provides in subsection (1) that a person commits kidnapping if he abducts another or, having abd......
-
State v. Miller
...with a technique is not a failure to prove a foundational element, but affects weight and credibility only. See, also, State v. Scott, 206 Neb. 451, 293 N.W.2d 114 (1980); State v. Kolar, 206 Neb. 619, 294 N.W.2d 350 There being no error, the judgment of the District Court is affirmed. AFFI......
-
State v. Wehrle
...attention to three cases which he believes support his argument that the information was fatally deficient, namely, State v. Scott, 206 Neb. 451, 293 N.W.2d 114 (1980), May v. State, 153 Neb. 369, 44 N.W.2d 636 (1950), and Goodloe v. Parratt, 605 F.2d 1041 (8th Cir.1979). We find those deci......
-
State v. Curlile, A-01-616.
...he may prepare his defense and be enabled to plead the judgment as a bar to a later prosecution for the same offense. State v. Scott, 206 Neb. 451, 293 N.W.2d 114 (1980). Having charged Curlile only with intent to terrorize, and not reckless disregard of causing terror, the State was requir......