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www.nebraska.gov/apps-courts-epub/
03/04/2025 09:09 AM CST
- 453 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
State of Nebraska, appellee, v.
Mark J. Porter, appellant.
___ N.W.3d ___
Filed February 25, 2025. No. A-24-028.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
5. Criminal Law: Courts: Appeal and Error. When deciding appeals
from criminal convictions in county court, an appellate court applies the
same standards of review that it applies to decide appeals from criminal
convictions in district court.
6. Constitutional Law: Search and Seizure: Appeal and Error. An
appellate court applies a two-part analysis when reviewing whether a
consent to search was voluntary. As to the historical facts or circumstances leading up to a consent to search, the appellate court reviews
the trial court’s findings for clear error. However, whether those facts
or circumstances constituted a voluntary consent to search, satisfying
the Fourth Amendment, is a question of law, which the appellate court
reviews independently of the trial court. And where the facts are largely
undisputed, the ultimate question is an issue of law.
7. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact.
8. Constitutional Law: Motions to Suppress: Confessions: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law
enforcement procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436,
86 S. Ct.
1602,
16 L. Ed. 2d 694 (1966), an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate
court reviews independently of the trial court’s determination.
9. Motions to Suppress: Investigative Stops: Warrantless Searches:
Probable Cause: Appeal and Error. In reviewing a trial court’s ruling
on a motion to suppress based on the Fourth Amendment, an appellate
court will uphold its findings of fact unless they are clearly erroneous.
But an appellate court reviews de novo the trial court’s ultimate determinations of reasonable suspicion to conduct an investigatory stop and
probable cause to perform a warrantless search.
10. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
protect individuals against unreasonable searches and seizures by the
government.
11. Arrests: Search and Seizure: Probable Cause: Words and Phrases.
An arrest is a highly intrusive detention (seizure) of a person that must
be justified by probable cause.
12. Warrantless Searches: Probable Cause: Police Officers and Sheriffs.
Probable cause to support a warrantless arrest exists only if the officer
has knowledge at the time of the arrest, based on information that is
reasonably trustworthy under the circumstances, that would cause a
reasonably cautious person to believe that a suspect has committed or is
committing a crime.
13. Probable Cause: Words and Phrases. Probable cause is a flexible,
commonsense standard that depends on the totality of the circumstances.
14. Probable Cause: Appeal and Error. An appellate court determines
whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.
15. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda
v. Arizona, 384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966),
prohibits the use of statements derived during custodial interrogation
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
unless the prosecution demonstrates the use of procedural safeguards
that are effective to secure the privilege against self-incrimination. The
safeguards provided by Miranda come into play whenever a person
in custody is subjected to either express questioning or its functional
equivalent.
16. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
Under the Miranda rule, a “custodial interrogation” takes place when
questioning is initiated by law enforcement after a person has been taken
into custody or is otherwise deprived of his or her freedom of action in
any significant way.
17. Miranda Rights. The ultimate inquiry for determining whether a person
is “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436,
86 S.
Ct. 1602,
16 L. Ed. 2d 694 (1966), is simply whether there is a formal
arrest or restraint on freedom of movement of the degree associated with
a formal arrest.
18. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response
from the suspect.
19. Miranda Rights: Police Officers and Sheriffs. The circumstances that
are most relevant to the custody inquiry include: (1) the location of the
interrogation and whether it was a place where the defendant would
normally feel free to leave; (2) whether the contact with the police was
initiated by them or by the person interrogated, and, if by the police,
whether the defendant voluntarily agreed to the interview; (3) whether
the defendant was told he or she was free to terminate the interview and
leave at any time; (4) whether there were restrictions on the defendant’s
freedom of movement during the interrogation; (5) whether neutral
parties were present at any time during the interrogation; (6) the duration of the interrogation; (7) whether the police verbally dominated the
questioning, were aggressive, were confrontational, were accusatory,
threatened the defendant, or used other interrogation techniques to pressure the suspect; and (8) whether the police manifested to the defendant
a belief that the defendant was culpable and that they had the evidence
to prove it.
20. Constitutional Law: Search and Seizure: Blood, Breath, and Urine
Tests. The drawing of blood from a person’s body for the purpose of
administering blood tests is a search of the person subject to Fourth
Amendment constraints.
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
21. Constitutional Law: Search and Seizure: Warrantless Searches. Both
the Fourth Amendment to the U.S. Constitution and article I, § 7, of the
Nebraska Constitution guarantee against unreasonable searches and seizures. Searches without a valid warrant are per se unreasonable, subject
only to a few specifically established and well-delineated exceptions.
22. Warrantless Searches. The warrantless search exceptions Nebraska has
recognized include: (1) searches undertaken with consent, (2) searches
under exigent circumstances, (3) inventory searches, (4) searches of
evidence in plain view, and (5) searches incident to a valid arrest.
23. Warrantless Searches: Proof. It is the State’s burden to show that a
search falls within an exception to the warrant requirement.
24. Constitutional Law: Search and Seizure: Duress. Generally, to be
effective under the Fourth Amendment, consent to a search must be a
free and unconstrained choice, and not the product of a will overborne.
25. Warrantless Searches: Duress. Consent for a warrantless search must
be given voluntarily and not as a result of duress or coercion, whether
express, implied, physical, or psychological.
26. Constitutional Law: Search and Seizure. The determination of whether
the facts and circumstances constitute a voluntary consent to a search,
satisfying the Fourth Amendment, is a question of law.
27. Search and Seizure. Whether consent to a search was voluntary is to be
determined from the totality of the circumstances surrounding the giving
of consent.
28. Police Officers and Sheriffs: Warrantless Searches. While there is
no requirement that police must always inform citizens of their right to
refuse when seeking permission to conduct a warrantless consent search,
knowledge of the right to refuse is a factor to be considered in the voluntariness analysis.
29. Constitutional Law: Blood, Breath, and Urine Tests. A court may not
rely solely on the existence of an implied consent statute to conclude
that consent to a blood test was given for Fourth Amendment purposes,
and the determination of whether consent was voluntarily given requires
a court to consider the totality of the circumstances.
Appeal from the District Court for Hall County, Ryan C.
Carson, Judge, on appeal thereto from the County Court
for Hall County, Alfred E. Corey III, Judge. Judgment of
District Court affirmed.
T. Charles James, of Langvardt, Valle & James, P.C., L.L.O.,
for appellant.
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Riedmann, Chief Judge, and Moore and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Mark J. Porter appeals from the order of the Hall County
District Court affirming his county court convictions for aggravated driving under the influence of alcohol (DUI) (blood
alcohol .15 or greater), a Class W Misdemeanor, and traveling
the wrong way on a one-way roadway, an infraction. Porter
asserts that the district court erred in affirming the county
court’s overruling of his motion to suppress and in finding that
the evidence was sufficient to support his convictions. For the
reasons stated herein, we affirm.
II. STATEMENT OF FACTS
1. Facts Leading to Arrest
On October 22, 2021, at 12:40 a.m., law enforcement officers responded to a report of a personal injury motor vehicle
accident at Second and Oak Streets in Grand Island, Nebraska.
Second Street is a three-lane, one-way road permitting westbound traffic only. Multiple officers responded to assist with
traffic control and to contain the scene.
When Officer Damian McAlevy arrived at the scene, he
observed a Ford Edge with heavy front-end damage and a
missing tire that appeared to be in the middle of the roadway,
a knocked over light pole near the Ford Edge, and a Nissan
sedan facing toward the northeast that had also sustained heavy
front-end damage. Officer McAlevy contacted the Nissan’s
driver and passenger. The Nissan’s driver informed Officer
McAlevy that “he was traveling westbound down Second
Street and the other vehicle was traveling towards him the
wrong way on a one-way.” The Nissan’s passenger provided
a similar account of the events. Another witness “claimed that
she saw one vehicle traveling eastbound on Second, the other
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33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
one traveling westbound” but the witness was unsure which
vehicle was traveling in the wrong direction.
Officer McAlevy testified that he observed an individual,
whom he identified as Porter, standing next to the Ford Edge.
Porter indicated that he owned the Ford and that he was driving it at the time of the accident. Officer McAlevy observed
Porter to have bloodshot and watery eyes and slurred speech.
Officer McAlevy also noted that Porter was disoriented and
unfocused and that Porter’s responses were delayed.
Porter was examined by medical personnel on scene. Medical
personnel did not express any concerns about Porter’s ability
to understand their questions or his competence to be able to
refuse medical treatment, nor did they observe any significant
injuries. After Porter refused medical care, Officer McAlevy
reinitiated contact with Porter, this time noting that there was
an “odor of alcohol coming from his person,” that Porter was
swaying, and that he was struggling to maintain his balance.
After Porter stated he was headed home, Officer McAlevy
asked Porter which way he was headed and Porter “point[ed]
to the south, southeast.” Officer McAlevy noted that although
Porter indicated that he was heading home, the location of
Porter’s residence was not located to the south or southeast as
indicated by Porter but was actually located on the west side
of town, which was inconsistent with the direction that Porter
indicated he was traveling.
Based upon his observations, Officer McAlevy began a
15-minute observation period of Porter in preparation for
conducting a preliminary breath test (PBT). During the observation period, Officer McAlevy “maintain[ed a] visual” of
Porter while also getting the forms and PBT ready. During
the 15-minute period, Porter was in the company of either a
law enforcement officer or a paramedic/firefighter. During
the observation period, Porter made statements to Officer
McAlevy, including an admission that he was coming from a
bar and had two alcoholic drinks of “Crown and water” while
he was there. Based upon Porter’s statements, including his
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
admission of consuming alcohol, along with Officer McAlevy’s
observations of Porter, Officer McAlevy suspected that Porter
had been driving under the influence.
After the 15-minute observation period had passed, Officer
McAlevy administered the PBT, which Porter failed with a
.216 result. Officer McAlevy arrested Porter for DUI and
read Porter the postarrest chemical test advisement form that
advised Porter he was under arrest, discussed the collection of
a chemical sample, and allowed Porter to consent to providing
a sample. Porter subsequently signed the form consenting to a
blood sample. He was placed in handcuffs and was transported
to a hospital where a blood sample was drawn. The sample
revealed that Porter’s blood alcohol content was .226.
2. Complaint
In November 2021, the State filed a complaint in the Hall
County Court charging Porter with first offense aggravated
DUI in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2021)
and traveling the wrong way on a one-way roadway in violation of
Neb. Rev. Stat. § 60-6,138 (Reissue 2021).
3. Motion to Suppress
In February 2022, Porter filed a motion to suppress evidence obtained by law enforcement alleging that the detention,
search, interrogation, and the arrest of his person, violated his
4th, 5th, and 14th Amendment rights. During the suppression
hearing, the State adduced testimony from Officer McAlevy,
as well as Officer Tyler Noel. Porter argued that law enforcement did not have a reasonable suspicion to believe he was
under the influence when he was detained, that law enforcement did not have probable cause to arrest him for DUI, that
law enforcement did not have probable cause to believe he
was driving under the influence of alcohol because the PBT
was not administered in compliance with 177 Neb. Admin.
Code ch. 1 (2016) (Title 177), that his Fifth Amendment rights
were violated when law enforcement elicited statements from
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
him prior to reading him his Miranda rights, that law enforcement did not seek a warrant to arrest him under
Neb. Rev.
Stat. § 29-404.02 (Cum. Supp. 2022), and that the warrantless
blood draw was illegally obtained.
Following the hearing, the county court denied Porter’s
motion to suppress in its entirety. Specifically, the county court
found that law enforcement officers had reasonable grounds
to believe that Porter committed the offense of DUI and had
probable cause to arrest Porter for DUI; that law enforcement
did not violate Title 177 as it related to the 15-minute observation period in preparation for a PBT; that in light of the officer’s testimony, Porter’s allegations related to the calibration
of the PBT unit were meritless; that Miranda warnings were
not required during the 15-minute observation period during
which Porter made incriminating statements to law enforcement; and that a warrant for the blood draw was not required
as a result of Porter’s consent on the postarrest chemical
advisement form.
4. Motion to Reconsider
In August 2022, Porter filed a motion to reconsider the
county court’s order overruling his motion to suppress, claiming that video footage from Officer McAlevy’s body camera
contradicted the officer’s testimony governing Porter’s condition and the events that transpired during the 15-minute observation period. Following a hearing, the county court overruled
the motion to reconsider, stating:
The Court bases its decision on multiple factors. First,
Officer McAlevy requested [another officer] to watch
[Porter] during the fifteen-minute observation period
while he was at his cruiser. Next, Officer McAlevy stated
that other officers were on the scene and made observations of [Porter]. Finally, Officer McAlevy said when he
was outside the [Grand Island Fire Department] vehicle,
he was able to see [Porter] through the windows for
this brief period. Considering these factors, [Porter’s]
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
Motion to Reconsider its Motion to Suppress is denied.
The Court’s previous analysis in its original order is
applicable to this Motion to Reconsider based on where
Officer McAlevy and other officers were located during
the fifteen-minute observation period of [Porter]. Law
enforcement was in [Porter’s] presence for the entire
fifteen-minute period based on the evidence received by
the Court.
5. Trial and Sentencing
During the March 2023 bench trial, witnesses included a
medical laboratory technician; Nicole Meier, a medical laboratory scientist; the Nissan’s passenger; the Nissan’s driver; and
Officer McAlevy. The evidence adduced was consistent with
the facts as laid out above. The county court found that the
State met its burden to prove Porter was operating a motor
vehicle with a blood concentration over 0.15, that Porter’s
blood test results complied with Title 177 and were admissible,
and that the State met its burden of proof beyond a reasonable
doubt as to both counts contained in the complaint.
Thereafter, the county court sentenced Porter for aggravated
DUI (.15 or greater) to 9 months of probation with 2 days of
jail time, a $500 fine, and revocation of his license for a period
of 1 year. For his conviction for traveling the wrong way on a
one-way roadway, the county court fined Porter $100.
6. Appeal to District Court
Porter timely appealed his convictions and sentences to the
Hall County District Court. On appeal to the district court,
Porter’s statement of errors included numerous allegations.
The statement of errors that match the errors assigned in
this appeal are the county court erred in overruling Porter’s
motion to suppress by “relying upon an improperly administered [PBT] that lacked adequate foundation, and which was
conducted without reasonable suspicion, and which failed
to establish probable cause to arrest [Porter] for the offense
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STATE V. PORTER
Cite as 33 Neb. App. 453
charged herein”; “finding that law enforcement officers had
‘. . . the ability to proceed with a DUI investigation’”; “relying on insufficient evidence to show probable cause to arrest
[Porter] for [DUI]”; “finding that statements elicited from
[Porter] by law enforcement officers were admissible”; and
“finding that a warrant to obtain a sample of [Porter’s] blood
was not required.” The statement of errors separately alleged
that the county court erred in its “receipt of an evidentiary
blood test result at trial, finding that the foundational requirements for the admission of the blood test result to have been
satisfied,” and that the county court erred in “finding [Porter]
guilty beyond a reasonable doubt as to ‘. . . counts one and
two of the amended complaint’ in the absence of evidence sufficient to support such finding.”
At the appeal hearing, the district court took judicial notice
of the county court transcript and bill of exceptions and
received written arguments from the parties. Thereafter, the
district court affirmed the county court’s judgment and Porter’s
convictions and sentences.
III. ASSIGNMENTS OF ERROR
Porter assigns, restated, that the district court erred in (1)
affirming the county court’s denial of his motion to suppress
and (2) affirming the county court’s finding that the evidence
was sufficient to support his convictions.
IV. STANDARD OF REVIEW
[1-5] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals,
and its review is limited to an examination of the record for
error or abuse of discretion. State v. McGinn, 303 Neb. 224,
928 N.W.2d 391 (2019), modified on denial of rehearing
303
Neb. 931,
932 N.W.2d 83. Both the district court and a higher
appellate court generally review appeals from the county
court for error appearing on the record.
Id. When reviewing
a judgment for errors appearing on the record, an appellate
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STATE V. PORTER
Cite as 33 Neb. App. 453
court’s inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
Id. But we independently review
questions of law in appeals from the county court.
Id. When
deciding appeals from criminal convictions in county court,
we apply the same standards of review that we apply to decide
appeals from criminal convictions in district court.
Id.
[6] An appellate court applies a two-part analysis when
reviewing whether a consent to search was voluntary. State
v. Saitta,
306 Neb. 499,
945 N.W.2d 888 (2020). As to the
historical facts or circumstances leading up to a consent to
search, the appellate court reviews the trial court’s findings for
clear error.
Id. However, whether those facts or circumstances
constituted a voluntary consent to search, satisfying the Fourth
Amendment, is a question of law, which the appellate court
reviews independently of the trial court. State v.
Saitta, supra.
And where the facts are largely undisputed, the ultimate question is an issue of law.
Id.
[7] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An
appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact. State v. McGinn, supra.
[8] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona,
384 U.S. 436,
86
S. Ct. 1602,
16 L. Ed. 2d 694 (1966), an appellate court applies
a two-part standard of review. State v. Montoya,
304 Neb. 96,
933 N.W.2d 558 (2019). Regarding historical facts, an appellate court reviews the trial court’s findings for clear error.
Id.
Whether those facts meet constitutional standards, however, is
a question of law, which an appellate court reviews independently of the trial court’s determination.
Id.
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33 Nebraska Appellate Reports
STATE V. PORTER
Cite as 33 Neb. App. 453
V. ANALYSIS
1. Motion to Suppress
Porter first claims that the district court erred in affirming
the county court’s overruling of his motion to suppress. More
specifically, Porter argues that his motion to suppress should
have been granted because (a) no probable cause to arrest
him existed because the PBT was administered improperly;
(b) he was unlawfully arrested without a warrant in violation of § 29-404.02; (c) his statements to Officer McAlevy
were the product of a custodial investigation without Miranda
warnings so were unlawfully obtained in violation of the
Fifth Amendment; and (d) Porter’s warrantless blood draw
at the hospital was unlawfully obtained in violation of the
Fourth Amendment. We will address each of these arguments
independently.
[9] In reviewing a trial court’s ruling on a motion to suppress
based on the Fourth Amendment, we will uphold its findings
of fact unless they are clearly erroneous. State v. McCave, 282
Neb. 500,
805 N.W.2d 290 (2011). But we review de novo the
trial court’s ultimate determinations of reasonable suspicion to
conduct an investigatory stop and probable cause to perform a
warrantless search.
Id.
(a) Administration of PBT and
Probable Cause to Arrest
Porter argues that the district court erred in affirming the
county court’s denial of his motion to suppress because the
PBT was administered improperly in that Officer McAlevy
did not personally observe Porter for the full 15-minute observation period as required by Title 177 and the PBT device
used by Officer McAlevy was not shown to be the same
device calibrated by Officer Noel. He contends that, because
the PBT was not administered properly, no probable cause to
arrest him existed and the evidence obtained following that
arrest, including but not limited to Porter’s blood test, should
be suppressed on that basis.
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STATE V. PORTER
Cite as 33 Neb. App. 453
[10-14] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the government.
State v. McCave, supra. An arrest is a highly intrusive detention (seizure) of a person that must be justified by probable
cause. Id. Probable cause to support a warrantless arrest exists
only if the officer has knowledge at the time of the arrest,
based on information that is reasonably trustworthy under the
circumstances, that would cause a reasonably cautious person
to believe that a suspect has committed or is committing a
crime. Id. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances. Id. We
determine whether probable cause existed under an objective
standard of reasonableness, given the known facts and circumstances. Id.
Porter’s argument is premised on the theory that officers
needed the results of the PBT in order to establish probable
cause to arrest him. But in State v. Halligan,
222 Neb. 866,
868,
387 N.W.2d 698, 700 (1986), the Nebraska Supreme
Court addressed a similar factual pattern and held:
We find that the sheriff had probable cause to believe
that a misdemeanor had been committed based upon
the following facts: defendant’s breath smelled of
alcohol, his eyes were bloodshot, and his speech was
slurred. We further find that the sheriff had probable
cause to believe that a warrantless arrest was justified
under § 29-404.02(2)(c) because evidence would be
destroyed without immediate action. The body would
metabolize the alcohol and the evidence would be lost.
The arrest of defendant without a warrant was valid
under § 29-404.02(2)(c). See Schmerber v. California,
384 U.S. 757,
86 S. Ct. 1826,
16 L. Ed. 2d 908 (1966).
And in State v. Huff,
282 Neb. 78, 106-07,
802 N.W.2d
77, 101 (2011), the Nebraska Supreme Court, in addressing
whether law enforcement had sufficient probable cause to
arrest a suspect for DUI, stated:
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STATE V. PORTER
Cite as 33 Neb. App. 453
To begin with, if an officer has probable cause to arrest
a suspect for DUI and reasonable grounds to believe that
the suspect committed DUI, the officer may arrest the
suspect and require a blood test notwithstanding the fact
that a [PBT] was not administered. And both reasonable
grounds and probable cause were established in this case.
[The defendant] was observed to have bloodshot, glassy
eyes and difficulty standing. Nearly everyone who had
contact with [the defendant] that night reported a strong
odor of alcohol coming from him. We have little difficulty in concluding that despite the lack of field sobriety
tests or a [PBT], there was ample evidence establishing
probable cause to arrest [the defendant] and reasonable
grounds to demand a blood test.
See, also, State v. Fischer, 194 Neb. 578,
234 N.W.2d 205
(1975) (Nebraska Supreme Court found officer had probable
cause to make arrest after detecting odor of alcohol emanating
from vehicle’s driver following collision).
Similarly, in the instant case, upon arriving at the scene
of the accident, after speaking with witnesses and having
contact with Porter, Officer McAlevy determined that Porter
had been traveling the wrong way on a one-way street when
Porter’s vehicle collided with another vehicle. During Officer
McAlevy’s initial contact with Porter, he observed that Porter
had bloodshot and watery eyes, seemed confused when speaking, was disoriented, and was slurring his speech. After Porter
was checked by medical personnel on scene, Officer McAlevy
again contacted Porter, this time also observing that Porter
had the odor of alcohol emanating from his person, was
swaying, and was struggling to maintain his balance. After
reviewing the entirety of this record, even without considering
the results of the PBT or Porter’s admissions of consuming
alcohol, we find that probable cause existed to arrest Porter
for DUI.
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STATE V. PORTER
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(b) Warrantless Arrest
Porter separately argues that pursuant to § 29-404.02,
police lacked the authority to arrest him without a warrant
because the alleged misdemeanor crime did not take place in
the officer’s presence.
Section 29-404.02 provides, in pertinent part:
(1) Except as provided in sections 28-311.11 and
42-928, a peace officer may arrest a person without a
warrant if the officer has reasonable cause to believe that
such person has committed:
...
(b) A misdemeanor, and the officer has reasonable
cause to believe that such person either (i) will not be
apprehended unless immediately arrested, (ii) may cause
injury to himself or herself or others or damage to property unless immediately arrested, (iii) may destroy or conceal evidence of the commission of such misdemeanor,
or (iv) has committed a misdemeanor in the presence of
the officer[.]
Porter acknowledges that although the Nebraska Supreme
Court has previously held that the risk of dissipation of alcohol
content in a person’s body provided a sufficient basis for a
warrantless arrest pursuant to § 29-404.02(1)(b)(iii), he argues
that that holding was called into question by the U.S. Supreme
Court’s holding in Missouri v. McNeely, 569 U.S. 141,
133
S. Ct. 1552,
185 L. Ed. 2d 696 (2013), and that the Nebraska
Supreme Court should revisit the issue. McNeely is factually
different in that the Court examined the issue of requiring a
warrant prior to drawing blood from an individual suspected
of DUI as opposed to a warrantless arrest of that person. But
whether McNeely has some bearing on Nebraska jurisprudence
is a matter we need not decide.
Recently, in State v. Hoehn,
316 Neb. 634, 649,
6 N.W.3d
487, 497 (2024), the Nebraska Supreme Court clarified that
when applying the dictates of the U.S. Supreme Court’s
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holding in Virginia v. Moore,
553 U.S. 164,
128 S. Ct. 1598,
170 L. Ed. 2d 559 (2008), stating:
the U.S. Supreme Court clarified that whether a search
is reasonable under the Fourth Amendment “has never
depend[ed] on the law of the particular State in which
the search occurs.” The Court accordingly held that
where there was probable cause for the defendant’s arrest
for driving with a suspended license, the trial court properly denied the defendant’s motion to suppress evidence
found in the search pursuant to that arrest, even though
the arresting officer lacked authority to make the arrest
because driving with a suspended license was not an
arrestable offense under state law.
Applying that rationale to the facts in Hoehn, which was
centered on an alleged violation of a Nebraska jurisdictional
statute that conferred no authority to arrest the defendant outside of the police officer’s jurisdictional territory, the Nebraska
Supreme Court held that
regardless of [the officer’s] jurisdictional power and
authority under § 29-215 to have conducted the stop and
arrest of [the defendant], since there is no dispute that
the stop was supported by reasonable suspicion and the
arrest was supported by probable cause, the exclusionary
rule applicable to violations of the Fourth Amendment
and article I, § 7, of the Nebraska Constitution does not
apply to the fruits of the stop. These constitutional provisions were the sole basis for [the defendant’s] objection to the evidence at trial. Accordingly, the county
court did not err in denying [the defendant’s] motion
to suppress brought under the Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska
Constitution.
State v. Hoehn, 316 Neb. at 656, 6 N.W.3d at 501.
We make a similar finding here. Regardless of Porter’s claim
that the arresting officer lacked authority under § 29-404.02(1)
to arrest Porter without a warrant, having found that there
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was probable cause for his arrest, we reject Hoehn’s claim
that the district court erred in denying his motion to suppress
evidence applying the exclusionary rule provided in the U.S.
and Nebraska Constitutions for an alleged violation of this
Nebraska statute.
(c) Statements to Law Enforcement
Porter next contends that his statements to law enforcement
should have been suppressed because he was not advised of
his rights under Miranda v. Arizona, 384 U.S. 436,
86 S. Ct.
1602,
16 L. Ed. 2d 694 (1966), prior to making those statements. Specifically, he argues that during the 15-minute observation period prior to being administered the PBT, he was not
free to leave and gave incriminating statements in response to
Officer McAlevy’s questioning without being advised of his
Miranda rights.
[15-19] In State v. Vaughn,
314 Neb. 167, 182-83,
989
N.W.2d 378, 393 (2023), the Nebraska Supreme Court
recently stated:
Miranda prohibits the use of statements derived during
custodial interrogation unless the prosecution demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination.
The safeguards provided by Miranda “‘“come into play
whenever a person in custody is subjected to either
express questioning or its functional equivalent.”’”
Under the Miranda rule, a “custodial interrogation” takes
place when questioning is initiated by law enforcement
after a person has been taken into custody or is otherwise deprived of his or her freedom of action in any
significant way. Both the U.S. Supreme Court and this
court have emphasized that “the ultimate inquiry for
determining whether a person is ‘in custody’ for purposes of Miranda ‘“is simply whether there is a formal
arrest or restraint on freedom of movement of the degree
associated with a formal arrest.”’” We view these two
articulations as synonymous.
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The term “interrogation” under Miranda refers not
only to express questioning, but also to any words or
actions on the part of the police (other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from the suspect.
The court further stated:
Notably, in Berkemer v. McCarty, [468 U.S. 420, 436,
104 S. Ct. 3138,
82 L. Ed. 2d 317 (1984),] the [U.S.
Supreme] Court acknowledged that “few motorists would
feel free . . . to leave the scene of a traffic stop without
being told they might do so.” Nonetheless, it rejected
the suggestion that any roadside questioning of a person
detained pursuant to a routine traffic stop constitutes
custodial interrogation within the scope of Miranda. In
so doing, the Court observed two features of traffic stops
which mitigate the danger that the person questioned
would be induced “‘to speak where he would not otherwise do so freely.’”
First, detention pursuant to a traffic stop is “presumptively temporary and brief.” Second, the circumstances
of the typical traffic stop are not such that the person
detained feels “completely at the mercy of the police”;
the typical traffic stop is at least somewhat public, and
the person detained typically confronts at most one or two
officers. Accordingly, the Court reasoned that an ordinary
traffic stop is “substantially less ‘police dominated’” than
the kinds of interrogation at issue in Miranda.
....
Previously, in State v. Rogers, [277 Neb. 37, 57,
760
N.W.2d 35, 54 (2009),] we noted the “large body of
case law . . . developed since Miranda” which has made
apparent “certain circumstances that are most relevant
to the custody inquiry.” Those circumstances include:
(1) the location of the interrogation and whether it was
a place where the defendant would normally feel free to
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leave; (2) whether the contact with the police was initiated by them or by the person interrogated, and, if by
the police, whether the defendant voluntarily agreed to
the interview; (3) whether the defendant was told he or
she was free to terminate the interview and leave at any
time; (4) whether there were restrictions on the defend
ant’s freedom of movement during the interrogation; (5)
whether neutral parties were present at any time during
the interrogation; (6) the duration of the interrogation;
(7) whether the police verbally dominated the questioning, were aggressive, were confrontational, were accusatory, threatened the defendant, or used other interrogation techniques to pressure the suspect; and (8) whether
the police manifested to the defendant a belief that the
defendant was culpable and that they had the evidence to
prove it.
State v. Vaughn, 314 Neb. 167, 183-86,
989 N.W.2d 378,
393-95 (2023). Contra State v. Andersen,
213 Neb. 695,
331
N.W.2d 507 (1983) (prior to decision in Vaughn, officer
detaining defendant for PBT interrogated defendant whether
he had been drinking violated Miranda). But see, State v.
Casillas,
279 Neb. 820,
782 N.W.2d 882 (2010) (temporarily detaining driver to submit to routine field sobriety tests
does not ordinarily rise to level of custody so as to implicate
Miranda); State v. Bowers,
250 Neb. 151,
548 N.W.2d 725
(1996) (driver not in custody for purposes of Miranda at
time of his verbal responses to field sobriety tests in officer’s
police cruiser).
Applying the Vaughn factors here, the record establishes
that Officer McAlevy and Porter’s interactions occurred on
a public street; that Officer McAlevy initiated contact with
Porter in the course of investigating an automobile accident;
and that, during their interactions, Officer McAlevy never
told Porter that he was free to leave. And although Officer
McAlevy testified that Porter was not free to leave during the
observation period, that fact is not determinative. See, State
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v. Vermuele,
234 Neb. 973,
453 N.W.2d 441 (1990) (validity
of arrest is based upon objective existence of probable cause,
not officer’s subjective belief or knowledge); State v. Brown,
13 Neb. App. 359,
693 N.W.2d 559 (2005) (fact that officer
testified that defendant was not free to leave not determinative of whether defendant is in custody). The evidence further established that Porter was not handcuffed or otherwise
restrained during the observation period and that Officer
McAlevy was not aggressive or confrontational during the
exchange and did not articulate that he believed Porter was
guilty and had the evidence to prove it. The evidence further
established that there were no restrictions on Porter’s freedom
of movement and that neutral parties (others involved in the
accident) were present.
On this record, we find that the district court did not err
in affirming the county court’s determination that Porter was
not in custody at the point during the 15-minute observation
period during which Porter made representations concerning
the number of alcoholic drinks he had consumed.
(d) Results of Warrantless Blood Draw
Porter finally argues that the results of the warrantless
blood draw should have been suppressed because his consent
was not voluntary.
[20-23] It has long been recognized that the drawing of
blood from a person’s body for the purpose of administering blood tests is a search of the person subject to Fourth
Amendment constraints. State v. Miller, 312 Neb. 17,
978
N.W.2d 19 (2022). Both the Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures. State
v.
Miller, supra. Searches without a valid warrant are per se
unreasonable, subject only to a few specifically established and
well-delineated exceptions.
Id. The warrantless search exceptions Nebraska has recognized include: (1) searches undertaken with consent, (2) searches under exigent circumstances,
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(3) inventory searches, (4) searches of evidence in plain view,
and (5) searches incident to a valid arrest.
Id. It is the State’s
burden to show that a search falls within an exception to the
warrant requirement.
Id.
Here, the State relies on the consent exception to justify the
reasonableness of the warrantless blood draw. Porter argues
that, although he checked a box on a consent form which
purported to acknowledge his consent to a blood draw, his
consent was not obtained voluntarily because the postarrest
chemical advisement form did not satisfactorily advise him of
his constitutional right to refuse to submit and the form did
not include any language indicating he understood he had a
right to refuse and was giving up that right freely and voluntarily. Porter further argues that there were “‘inherent contradictions’” between the postarrest chemical advisement form
read to him and the language contained in Nebraska’s implied
consent statutes. Brief for appellant at 42.
[24-28] Generally, to be effective under the Fourth
Amendment, consent to a search must be a free and unconstrained choice, and not the product of a will overborne. State
v. Degarmo,
305 Neb. 680,
942 N.W.2d 217 (2020). Consent
for a warrantless search must be given voluntarily and not
as a result of duress or coercion, whether express, implied,
physical, or psychological.
Id. The determination of whether
the facts and circumstances constitute a voluntary consent to
a search, satisfying the Fourth Amendment, is a question of
law.
Id. Whether consent to a search was voluntary is to be
determined from the totality of the circumstances surrounding the giving of consent.
Id. While there is no requirement
that police must always inform citizens of their right to refuse
when seeking permission to conduct a warrantless consent
search, knowledge of the right to refuse is a factor to be considered in the voluntariness analysis.
Id.
The postarrest chemical advisement form signed by Porter
provided:
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You are under arrest for operating or being in actual
physical control of a motor vehicle while under the influence of alcoholic liquor or drugs.
. . . Pursuant to law, I am asking you to submit to a
chemical test or tests of your BLOOD to determine the
concentration of alcohol in your body. You do not have
to submit to such test or tests, but if you refuse, we may
seek a warrant requiring such test or tests.
Under the advisement was a space to initial either “I consent
a test of my blood” or “I refuse to submit to test of my blood.”
Porter initialed next to the consent line and signed his name at
the bottom.
Additionally, the implied consent statute, Neb. Rev. Stat.
§ 60-6,197 (Reissue 2021), provides:
(1) Any person who operates or has in his or her
actual physical control a motor vehicle in this state shall
be deemed to have given his or her consent to submit
to a chemical test or tests of his or her blood, breath, or
urine for the purpose of determining the concentration of
alcohol or the presence of drugs in such blood, breath,
or urine.
....
(4) Any person involved in a motor vehicle accident
in this state may be required to submit to a chemical test
or tests of his or her blood, breath, or urine by any peace
officer if the officer has reasonable grounds to believe
that the person was driving or was in actual physical
control of a motor vehicle on a public highway in this
state while under the influence of alcoholic liquor or
drugs at the time of the accident.
[29] And, in State v. Modlin, 291 Neb. 660,
867 N.W.2d 609
(2015), the Nebraska Supreme Court stated that the implied
consent statute is just one circumstance to be considered in the
totality of the circumstances in determining if the consent to a
blood test was voluntary. The court stated:
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At this juncture, it is important to distinguish between
“implied consent” and “actual consent.” The Court of
Appeals of Wisconsin stated: “‘Implied consent’ is not
an intuitive or plainly descriptive term with respect to
how the implied consent law works. [It may be] a source
of confusion. [T]he term ‘implied consent’ [may be]
used inappropriately to refer to the consent a driver gives
to a blood draw at the time a law enforcement officer
requires that driver to decide whether to give consent.
However, actual consent to a blood draw is not ‘implied
consent’ . . . .” State v. Padley, 354 Wis. 2d 545, 564,
849 N.W.2d 867, 876 (Wis. App. 2014). In connection
with actual consent, the Padley court continued: “[T]he
implied consent law is explicitly designed to allow the
driver, and not the police officer, to make the choice as
to whether the driver will give or decline to give actual
consent to a blood draw when put to the choice between
consent or automatic sanctions [for refusal].” 354 Wis.
2d at 571,
849 N.W.2d at 879 (emphasis in original).
That is, ordinarily, the point at which the driver chooses
not to refuse is the point in time at which the driver
actually consents to a blood draw. And the Supreme
Court of Georgia in Williams v. State[, 296 Ga. 817,
771 S.E.2d 373 (2015)], noted that the determination of
actual consent to the procuring and testing of a driver’s
blood requires the determination of the voluntariness of
the consent under the totality of the circumstances. . . .
See, also, People v. Harris, 234 Cal. App. 4th 671,
184
Cal. Rptr. 3d 198 (2015); State v. Brooks,
838 N.W.2d
563 (Minn. 2013).
State v. Modlin,
291 Neb. at 672, 867 N.W.2d at 618.
In viewing the totality of the circumstances, including that
Porter had given his implied consent under § 60-6,197 and
that he affirmed that consent after he initialed and signed the
chemical test advisement form which provided the consequences if Porter refused to consent, we conclude, as did both
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the county and the district courts, that Porter was aware of his
rights and voluntarily consented to the blood draw.
2. Sufficiency of Evidence
Porter’s final assignment of error is that the district court
erred in affirming his convictions because the evidence was
insufficient to support a finding of guilt beyond a reasonable doubt.
(a) Traveling Wrong Way on
One-Way Roadway
Regarding Porter’s conviction for traveling the wrong way
on a one-way roadway, § 60-6,138 provides, in pertinent part:
(1) The Department of Transportation and local authorities with respect to highways under their respective
jurisdictions may designate any highway, roadway, part
of a roadway, or specific lanes upon which vehicular traffic shall proceed in one direction at all times or at such
times as shall be indicated by traffic control devices.
(2) Except for emergency vehicles, no vehicle shall be
operated, backed, pushed, or otherwise caused to move in
a direction which is opposite to the direction designated
by competent authority on any deceleration lane, acceleration lane, access ramp, shoulder, or roadway.
Here, the evidence at trial established that Officer McAlevy
responded to a report of a motor vehicle accident occurring
on a one-way street. After speaking with witnesses, Officer
McAlevy determined that Porter had been traveling the wrong
way on a one-way street when he collided with the other
driver. This evidence is sufficient to support Porter’s conviction of traveling the wrong way on a one-way roadway.
(b) DUI
Porter also contends that there was insufficient evidence to
support his conviction of DUI under of § 60-6,196. Contained
within this assignment of error, Porter contends that his blood
draw results should not have been admitted, because the State
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failed to adduce sufficient foundational testimony to establish
that the hospital which drew and tested his blood had policies
and procedures that conformed with the relevant regulations
under Title 177.
(i) Foundational Requirements for
Admission of Blood Test Results
Porter acknowledges that the “‘relevant regulations’” governing the proper policy and procedures for testing blood are
set forth in Title 177, but he contends that the State failed to
establish that the hospital’s policies and procedures for testing Porter’s blood complied with Title 177 or that Meier was
familiar with Title 177 as amended in 2016. As it relates to
those regulations, he argues that foundation for admission of
his blood test results was lacking because the State failed to
offer evidence concerning the hospital laboratory’s compliance with §§ 006.05 and 006.06 of Title 177. Specifically,
he contends that the State failed to adduce evidence (1) that
the quality control sample result was greater than “+/- three
standard deviations” in order for the test results to be reported
as required by § 006.05B2; (2) that the hospital complied
with the requirement that “[o]n or before July 1 of each evennumbered year, Class A permit holders must submit his/her
reports of standard deviation data for the previous 24 month
period to the Department” as required by § 006.05C; (3) that
the hospital conformed with ongoing performance evaluation
studies as required by § 006.05D; (4) that the hospital complied with maintaining record requirements, including, but not
limited to, quality control results and related data as required
by § 006.05E. He separately argues that the State failed to
demonstrate compliance with “Inspection, Maintenance, and
Repair of Laboratory Instruments for Class A Methods” as set
forth in § 006.06.
In Nebraska, chemical blood tests are governed by Neb.
Rev. Stat. § 60-6,201 (Reissue 2021), which provides in relevant part:
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(1) Any test made under section 60-6,197, if made in
conformity with the requirements of this section, shall
be competent evidence in any prosecution under a state
statute or city or village ordinance involving operating
a motor vehicle while under the influence of alcoholic
liquor or drugs or involving driving or being in actual
physical control of a motor vehicle when the concentration of alcohol in the blood or breath is in excess of
allowable levels.
....
(3) To be considered valid, tests of blood, breath, or
urine made under section 60-6,197 or tests of blood or
breath made under section 60-6,211.02 shall be performed
according to methods approved by the Department of
Health and Human Services and by an individual possessing a valid permit issued by such department for such
purpose, except that a physician, registered nurse, or other
trained person employed by a licensed health care facility
or health care service which is defined in the Health Care
Facility Licensure Act or clinical laboratory certified pursuant to the federal Clinical Laboratories Improvement
Act of 1967, as such act existed on September 1, 2001,
or Title XVIII or XIX of the federal Social Security Act,
as such act existed on September 1, 2001, to withdraw
human blood for scientific or medical purposes, acting at
the request of a peace officer, may withdraw blood for the
purpose of a test to determine the alcohol concentration
or the presence of drugs and no permit from the department shall be required for such person to withdraw blood
pursuant to such an order. The department may approve
satisfactory techniques or methods to perform such tests
and may ascertain the qualifications and competence of
individuals to perform such tests and issue permits which
shall be subject to termination or revocation at the discretion of the department.
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In State v. Alkazahy,
314 Neb. 406, 412-13,
990 N.W.2d
740, 745 (2023), the Nebraska Supreme Court recently stated:
To be considered valid, tests of blood, breath, or urine
made under Neb. Rev. Stat. § 60-6,197 (Reissue 2021)
or tests of blood or breath made under Neb. Rev. Stat.
§ 60-6,211.02 (Reissue 2021) shall be performed according to methods approved by DHHS. [See § 60-6,201(3).]
DHHS may approve satisfactory techniques or methods
to perform such tests. The parties agree that chapter 1
of title 177 hosts the governing DHHS regulations in
this case.
Under title 177, a method is defined as “the name
of the principle of analysis” and “may be a laboratory
method.” A laboratory method is a chemical analysis
using laboratory procedures and instrumentation. The
failure to perform a test using the prescribed methods
makes the test result inadmissible. A technique is defined
as a “set of written instructions which describe the procedure, equipment, and equipment prevent[at]ive maintenance necessary to obtain an accurate alcohol content
test result.” Any deficiencies in techniques used to test
the breath or blood alcohol level in DUI cases generally
are of no foundational consequence, but only affect the
weight and credibility of the testimony.
According to Title 177, a method is “the name of the principle of analysis. The method may be a laboratory method.”
§ 001.16. A laboratory method is defined under Title 177 as “a
chemical analysis using laboratory procedures and instrumentation.” § 001.14.
In order to be valid, Porter’s blood test was required to
be performed with methods approved by the Department of
Health and Human Services (DHHS). Title 177 lays out the
approved methods for Class A permit holders and lists the
approved method on the Class A Permit. Accordingly, admissibility of Porter’s blood test at trial required the State to
present evidence that Porter’s blood test was performed with
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methods approved by DHHS. We find that the State complied
with this requirement. During the trial, Meier testified she
had been a medical laboratory scientist since 2006 and held
a Class A permit for the State of Nebraska for testing blood
samples. Her Class A permit, which was received into evidence, provided that Meier’s approved method of testing was
gas chromatography, which is an authorized method specifically listed in Title 177 for Class A permit holders. Meier further testified that the hospital in Grand Island where Porter’s
blood test was administered is licensed and regulated by the
“Clinical Laboratory Improvement Amendment,” a third-party
organization that reviews laboratory testing, as well as hospital operations, and that the hospital is licensed to operate
and function as a laboratory in Nebraska. This testimony was
sufficient to establish foundation that Porter’s blood test was
performed pursuant to the gas chromatography method, which
is approved by DHHS under Title 177. Notwithstanding this
testimony, Porter argues that Meier failed to provide testimony regarding the hospital’s compliance with the regulatory
requirements of portions of §§ 006.5 and 006.6 of Title 177
and that those sections’ dictates should be likewise considered
“methods” and required foundational testimony of compliance
to render the blood test results inadmissible. We disagree.
First, we disagree that Meier failed to provide testimony
regarding procedure, technique, or the required expertise associated with the testing of Porter’s blood. In that regard, Meier
testified that she has been a medical laboratory scientist since
2006; that she has a Class A permit for testing blood samples;
that the hospital where Porter’s blood was tested is properly
licensed and regulated; that the hospital has policies and procedures for performing legal blood testing that were authored
by Meier and that have been renewed since implemented; and
that she conducted the testing herself, using the gas chromatography analyzer which she is authorized to operate using her
Class A permit and which is an approved instrument under
Title 177. Further, Meier testified to the process for using
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the gas chromatography method and that she followed the
proper process in testing Porter’s blood. Although Meier did
not provide testimony as to the more specific requirements
of §§ 006.5 and 006.6 of Title 177 as argued by Porter, we
find that, on this record, Meier provided sufficient foundation for the method utilized to test Porter’s blood and that the
specific regulations cited by Porter, which he argues required
more specific foundational testimony fall under the category
described by the Nebraska Supreme Court as “of no foundational consequence, but only affect the weight and credibility
of the testimony.” State v. Prescott,
280 Neb. 96, 106,
784
N.W.2d 873, 883 (2010). If Porter believed that Meier failed to
comply with the regulatory requirements set forth in §§ 006.05
and 006.06 of Title 177, he could have further pursued separate questions of this nature on cross-examination. But as it
relates to Porter’s specific assignment of error, we find that
the district court did not err in admitting the results of Porter’s
blood tests into evidence over Porter’s foundational objection
to its admission.
Having determined that the results from Porter’s blood test
were properly admitted, we next address whether the evidence
was sufficient to support Porter’s conviction for DUI.
(ii) Sufficiency of Evidence—DUI
Section 60-6,196 provides:
(1) It shall be unlawful for any person to operate or be
in the actual physical control of any motor vehicle:
(a) While under the influence of alcoholic liquor or of
any drug;
(b) When such person has a concentration of eighthundredths of one gram or more by weight of alcohol per
one hundred milliliters of his or her blood; or
(c) When such person has a concentration of eighthundredths of one gram or more by weight of alcohol per
two hundred ten liters of his or her breath.
(2) Any person who operates or is in the actual physical control of any motor vehicle while in a condition
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described in subsection (1) of this section shall be guilty
of a crime and upon conviction punished as provided in
sections 60-6,197.02 to 60-6,197.08.
Here, Officer McAlevy was investigating a two-vehicle
accident in which Porter admitted to being one of the drivers. During the investigation, he observed that Porter had
bloodshot and watery eyes, he appeared disoriented and confused, and his speech was slurred. After Porter was released
from medical personnel on scene, Officer McAlevy reinitiated contact with Porter, this time observing that he had the
odor of alcohol emanating from his person, he was swaying,
and he was having trouble maintaining his balance. Based
upon these factors, Officer McAlevy decided to administer
a PBT to Porter. When Officer McAlevy began a required
15-minute observation period in preparation for conducting a
PBT, Officer McAlevy asked Porter if he had consumed any
alcohol and Porter admitted to having two alcoholic drinks
of “Crown and water.” After administering the PBT, Officer
McAlevy determined that Porter had failed the PBT with a
.216 result. Officer McAlevy arrested Porter and transported
him to the hospital where Porter consented to a blood draw,
the results of which we have determined were properly admitted into evidence. The blood draw results showed that Porter’s
blood alcohol content was .226 grams per 100 milliliters of
his blood. Based upon this record, the evidence was sufficient
to support Porter’s conviction for DUI. This assignment of
error fails.
VI. CONCLUSION
For the reasons stated above, we affirm Porter’s convictions
and sentences.
Affirmed.
