State v. Wegener
| Decision Date | 07 February 1992 |
| Docket Number | No. 90-1115,90-1115 |
| Citation | 479 N.W.2d 783,239 Neb. 946 |
| Parties | STATE of Nebraska, Appellee, v. Randy E. WEGENER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Police Officers and Sheriffs: Arrests: Probable Cause. The existence of probable cause justifying a warrantless arrest is tested by the collective information possessed by all the officers engaged in a common investigation.
2. Police Officers and Sheriffs: Arrests: Probable Cause. An officer who does not have personal knowledge of any of the facts establishing probable cause for an arrest may nevertheless make the arrest if the arresting officer is merely carrying out directions of another officer who does have probable cause.
3. Arrests: Evidence. Although the diminishment over time and the ultimate elimination of alcohol in the bloodstream are not willful or intentional, this metabolic process constitutes the destruction of evidence such as to provide a basis for effecting a warrantless arrest under the provisions of Neb.Rev.Stat. § 29-404.02 (Reissue 1989).
4. Criminal Law: Motions to Dismiss: Evidence. On a criminal defendant's motion to dismiss for insufficient evidence, the State is entitled to have all its relevant evidence accepted as true, the benefit of every inference reasonably drawn from the evidence, and every controverted fact resolved in its favor.
5. Criminal Law: Directed Verdict. In a criminal case, a trial court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged, or the evidence is so doubtful in character and lacking in probative value that a finding of guilt based on such evidence cannot be sustained.
Joseph H. Murray, of Germer, Murray & Johnson, Hebron, for appellant.
Don Stenberg, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.
Defendant, Randy E. Wegener, asserts the district court erred in affirming his county court conviction of driving while under the influence of alcohol, in violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1988). More specifically, he asserts that the district court erred in failing to find the county court erred on the record by (1) admitting into evidence the results of a test of his blood and (2) failing to dismiss the case at the close of the plaintiff-appellee State's case. We affirm.
Shortly before midnight on October 8, 1989, Officer David Lee of the Thayer County Sheriff's Department was dispatched to the scene of a one-vehicle accident. He there found a station wagon which had collided with a bridge guardrail. The wagon was stopped on the shoulder of the road, and Wegener, bleeding from his nose and from a cut over his left eye, was standing beside the wagon.
Lee detected a strong odor of alcohol on Wegener's breath and thus suspected, even before the two engaged in conversation, that Wegener had been drinking. Upon inquiry, Wegener said he had been driving, had been alone in the wagon, and had been drinking. Although Lee had difficulty understanding Wegener, Lee administered no field sobriety tests, as he could not be certain the difficulty was not the result of Wegener's injuries. Thus, Wegener was transported by rescue unit to a hospital while Lee remained at the scene to complete his investigation.
In the course of his work, Lee discovered some beer bottles in the wagon. Three were full, one was empty, and the others had been shattered. Lee could not tell whether the shattered bottles had been full or empty when they broke, but three of the other bottles were still cold.
The presence of the beer, combined with the other information he had acquired, led Lee to believe that Wegener had been driving while under the influence of alcohol. Lee thus radioed the dispatcher to report a possible drunk driver, and requested that an officer go to the hospital to which Wegener was being transported and obtain a blood sample from him.
Deputy Kenneth Cool then went to the hospital and awaited Wegener's arrival. After Wegener had been treated for his injuries, Cool placed Wegener under arrest. Cool then read to Wegener an implied consent form which is not contained in the record. Wegener signed the document, and Cool thereafter, approximately an hour and a half after the accident had taken place, caused a sample of Wegener's blood to be drawn. (Neb.Rev.Stat. § 39-669.08 (Reissue 1988) provides that one arrested for acts allegedly committed while driving under the influence of alcohol may be required to submit to a blood test.)
Cool, observing that some masking odors may have been present in the room, detected no odor of alcohol when standing approximately 4 to 5 feet from Wegener while reading the implied consent form; he did, however, smell alcohol on Wegener's breath when Wegener was placed in the squad car after the blood sample had been drawn. As Cool was acting on the basis of a radio message, he did not closely observe Wegener before placing him under arrest. Nor did Cool engage Wegener in any casual conversation, and nothing was said as to Wegener's drinking or driving. Cool did notice, however, that Wegener was coherent and in some pain and that he joked with the nurses.
Prior to trial, Wegener filed a motion to suppress the blood test results on the grounds that there was no probable cause to either arrest him or require him to provide a blood sample and that any statements he made were obtained unconstitutionally. Following a hearing, at which the above evidence was presented, the motion was overruled.
In addition to the foregoing evidence, the jury heard that the accident occurred on a flat stretch of highway, the guardrail Wegener struck was 5 1/2 feet from the white shoulder line of the road, Lee found no skid marks, and there was severe damage to the front of the wagon on the passenger side.
Further, a member of the rescue unit team testified that he did not detect any alcohol odor while riding with Wegener, but thought he had detected such an odor when bandaging him. This worker also stated that while at the accident scene, Wegener "talked probably a little louder than normal." Another member of the rescue unit also characterized Wegener as loud and rambling, but admitted he had not known Wegener previously and thus was not familiar with Wegener's normal speech.
Wegener objected to the receipt into evidence of the blood test results by renewing his earlier motion to suppress that evidence. After the objection was overruled, a laboratory technician testified that Wegener's blood alcohol content was .182 gram per one hundred milliliters.
At the close of the State's case, Wegener moved for dismissal on the ground that the evidence was insufficient to support a conviction. Upon the overruling of that motion, Wegener rested without adducing any evidence.
With respect to the first assignment of error, Wegener asserts the warrantless arrest was unconstitutional because Cool, as the arresting officer, had made no independent probable cause...
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State v. Huff
...arrest is tested by the collective information possessed by all the officers engaged in a common investigation.77 For instance, in State v. Wegener,78 an investigating officer sent a driver to the hospital without conducting field sobriety tests after the driver collided with a bridge guard......
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...doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. State v. Wegener, 239 Neb. 946, 479 N.W.2d 783 (1992); State v. Zitterkopf, 236 Neb. 743, 463 N.W.2d 616 (1990); State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989). That is ......
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