State v. Wahrman, 41257
| Decision Date | 26 October 1977 |
| Docket Number | No. 41257,41257 |
| Citation | 258 N.W.2d 818,199 Neb. 337 |
| Parties | STATE of Nebraska, Appellee, v. Raymond V. WAHRMAN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. If a person charged under the provisions of section 39-669.07, R.R.S.1943, requests that he have a physician of his choice evaluate his condition and perform, or have performed, laboratory tests he deems appropriate following the test administered at the direction of the arresting officer and is denied such opportunity, the results of the test made by the State are, if objected to by the defendant, inadmissible.
2. Section 39-669.09, R.R.S.1943, which provides that if the officer directs that the test shall be of the person's blood or urine, such person may choose whether the test shall be of blood or urine, does not require the officer to notify the person of his option, and if the person takes one or the other of these tests, then he has waived his right to insist that the test to be made by the State be the one of his choice.
Owens & Owens, Benkelman, for appellant.
Paul L. Douglas, Atty. Gen., Mel K. Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.
Defendant was charged in the county court of Red Willow County with having, on March 10, 1976, operated a motor vehicle on a public highway while having more than .10 of 1 percent by weight of alcohol in his body fluid in violation of the provisions of section 39-669.07, R.R.S.1943. Trial was held before the county judge, a jury having been waived. Defendant was found guilty by the judge and sentenced to a term of probation and fined $100. He then appealed to the District Court where, on the record of the testimony in the court below, the judgment was affirmed. § 29-613, R.R.S.1943; State v. Clark, 194 Neb. 487, 233 N.W.2d 898.
Having perfected his appeal to this court, defendant makes the following assignments of error: (1) The court erred in admitting and considering, under the provisions of section 39-669.09, R.R.S.1943, the results of a body fluid test which showed alcoholic content of .29 of 1 percent of alcohol, for the reason that the defendant was denied the right to have a physician evaluate his condition and perform whatever laboratory tests the physician deemed appropriate, all in violation of the provisions of section 39-669.09, R.R.S.1943. (2) The court erred in admitting and considering the results of the body fluid test because the State failed to prove that a choice of tests was accorded defendant as provided in section 39-669.08, R.R.S.1943. (3) The evidence was insufficient to sustain the charge because the testing officer did not deny the testimony of the defendant requesting a physician, but merely stated he did not recall such demand.
Section 39-669.09, R.R.S.1943, among other things, provides: If the defendant was refused the presence of a physician after the test, either to evaluate his condition or to perform further tests, then the results of the test performed by the State were clearly inadmissible.
If an examination of the record disclosed that such refusal was made by the arresting officer, the test results would be inadmissible and the conviction would have to be set aside. However, an examination of the record discloses that whether such was the case is a disputed question of fact. The defendant and another jail inmate testified that the officer denied defendant's request for a physician. An examination of the police officer's testimony on that point, given only on cross-examination in response to leading questions, discloses that, while as part of his testimony he stated he recalled no such request, he also testified that no such request was made and if it had been made he would have honored the request. The nature of the testimony was such that it was for the county judge in the first instance to determine the purport of the testimony, i. e., whether it was a denial that a request was made or a failure to recall whether the request was made. If the latter, of course, then the evidence would be insufficient to contradict defendant's evidence and would be insufficient to present a fact question. The District Court on review interpreted the officer's testimony as a denial of defendant's testimony. Our...
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State v. Miller
...not require the officer to inform the person to be tested of his privilege to request an independent test. See, also, State v. Wahrman, 199 Neb. 337, 258 N.W.2d 818 (1977); State v. Sommers, 201 Neb. 809, 272 N.W.2d 367 (1978); State v. Brittain, 212 Neb. 686, 325 N.W.2d 141 Rule 3 of the r......
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State v. Klingelhoefer, 85-442
...of his privilege to request an independent test. See, also, Zadina v. Weedlun, 187 Neb. 361, 190 N.W.2d 857 (1971); State v. Wahrman, 199 Neb. 337, 258 N.W.2d 818 (1977); State v. Sommers, 201 Neb. 809, 272 N.W.2d 367 (1978); State v. Brittain, 212 Neb. 686, 325 N.W.2d 141 (1982). We see no......
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State v. Sommers, 42025
...opportunity to elect between a blood or urine test. There is no merit to this assignment. This issue was settled in State v. Wahrman, 199 Neb. 337, 258 N.W.2d 818 (1977). We there said: "Section 39-669.09, R.R.S. 1943, which provides that if the officer directs that the test shall be of the......
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State v. Morse, 81-574
...That right only arises when the officer has directed either a blood or urine sample. The appellant cites the case of State v. Wahrman, 199 Neb. 337, 258 N.W.2d 818 (1977), for the proposition that one has a right to choose the type of test administered. That case, however, addressed one's p......