State v. Rothenberger ( 2015 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ROTHENBERGER
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
DOUGLAS ROTHENBERGER, APPELLANT.
Filed December 15, 2015. No. A-14-1160.
Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge, on
appeal thereto from the County Court for Scotts Bluff County, JAMES M. WORDEN, Judge.
Judgment of the District Court affirmed.
Bell Island, of Island & Huff, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
PIRTLE, RIEDMANN, and BISHOP, Judges.
BISHOP, Judge.
Douglas Rothenberger was convicted of refusing to submit to a chemical test, first offense,
in the county court for Scotts Bluff County, Nebraska. He appealed his conviction to the district
court for Scotts Bluff County, which affirmed. Rothenberger now appeals to this court, contending
his conviction should be reversed because the county court erred in (1) overruling his motion to
suppress after determining there was probable cause for his arrest, (2) failing to direct a verdict in
his favor, and (3) refusing to give his proposed jury instructions. We affirm.
BACKGROUND
The record before us does not contain the original complaint filed against Rothenberger.
On July 9, 2013, the State filed a two-count amended complaint charging Rothenberger with
driving under the influence of drugs or alcohol (DUI), second offense, in violation of Neb. Rev.
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Stat. § 60-6,196 (Reissue 2010) (count I), and refusing to submit to a chemical test in violation of
Neb. Rev. Stat. § 60-6,197 (Cum. Supp. 2014) (count II). Both charges were Class W
misdemeanors, Neb. Rev. Stat. § 60-6,197.03 (Cum. Supp. 2014), and arose out of events that
occurred “on or about June 18, 2013,” in Scotts Bluff County, Nebraska.
On January 16, 2014, Rothenberger filed a motion to suppress evidence, arguing that his
“stop, seizure, and arrest” were unconstitutional because they were conducted without a warrant
and “not based on reasonable and articulable suspicion that a crime had been committed or was
about to be committed.” A suppression hearing took place on February 3, 2014.
At the suppression hearing, witness Chad Leeling testified as follows. Between 12:30 and
1 a.m. on June 19, 2013, he was driving east on Highway 92 from Scottsbluff, Nebraska, to
Minatare, Nebraska. He came upon a station wagon that was fluctuating between 15 and 60 m.p.h.
and swerving. After the station wagon entered the opposing lane of traffic, causing an oncoming
car to enter Leeling’s lane, Leeling called 911. The dispatcher asked Leeling to follow the station
wagon until an officer arrived.
Leeling testified he followed the station wagon to the Pink Palace in Melbeta, Nebraska,
but it was closed. The station wagon stopped in front of the Pink Palace, then turned around and
proceeded westbound on Highway 92, toward Scottsbluff. Outside of Melbeta, an officer arrived
and pulled over the station wagon.
Deputy Jared Shepard of the Scotts Bluff County sheriff’s office testified that while
working the night shift between June 18 and 19, 2013, he responded to a dispatch about a citizen
concerned about another driver. The deputy drove to the east side of Melbeta, where he observed
two vehicles traveling westbound on Highway 92. He began following one of the vehicles, an older
station wagon, which matched the description given in the dispatch. The station wagon was
traveling under the speed limit “by a significant amount” and swerving. Shepard observed the
station wagon’s passenger-side tires touch the fog line twice and its driver-side tires cross the
center line twice. He estimated the driver-side tires crossed two feet over the center line.
Deputy Shepard activated his emergency lights, which caused no response from the station
wagon. After approximately a quarter of a mile, the deputy sounded his siren, at which time the
station wagon’s turn signal activated. After approximately another quarter of a mile, the station
wagon pulled onto the shoulder.
Deputy Shepard approached the station wagon and requested a driver’s license,
registration, and proof of insurance. The driver, whom the deputy identified as Rothenberger, had
trouble getting his window down or opening the door. It was discovered the transmission was still
in “drive.” After the transmission was shifted to “park,” Rothenberger was able to open the door
and supply Deputy Shepard with a Texas driver’s license.
Deputy Shepard again asked for proof of insurance and registration. Rothenberger told the
deputy the registration was in the backseat, so the deputy allowed Rothenberger to exit the vehicle
and look for it. According to the deputy, Rothenberger had slow and slurred speech and difficulty
multitasking. In addition, when Rothenberger exited the vehicle, he had a hard time standing and
maintaining his balance. Eventually, Rothenberger produced his registration, but no proof of
insurance. This took “quite some time.” Deputy Shepard did not smell alcohol on Rothenberger’s
breath.
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Deputy Shepard testified he then performed standard field sobriety tests on Rothenberger.
The first was the horizontal gaze nystagmus test, which revealed slight nystagmus at maximum
deviation, but no nystagmus during smooth pursuit. He then performed the 9-step walk-and-turn
test. As the deputy gave Rothenberger instructions for the test, Rothenberger was unable to keep
his balance. He then missed the heal-to-toe on the first step, stepped off the line, and raised his
arms. Deputy Shepard next performed the one-leg-stand test. Rothenberger raised his right foot
and began swaying; he put his foot down within the first two seconds of the test. The deputy, who
was trained in the performance of standard field sobriety tests, stated that Rothenberger’s
performance indicated possible impairment. Following the field sobriety tests, the deputy
performed a preliminary breath test (PBT), the result of which was negative for alcohol.
According to Deputy Shepard, while still on the scene with Rothenberger, he was informed
by dispatch that Rothenberger’s license had been suspended or revoked. He placed Rothenberger
under arrest for driving with a suspended license and transported him to the sheriff’s office for
evaluation by a drug recognition expert (DRE). According to the deputy, Rothenberger was
arrested for DUI based on the results of the evaluation by the DRE at the sheriff’s office. Deputy
Shepard testified he was not a certified DRE.
On cross-examination, Deputy Shepard testified that after performing the field sobriety
tests and a PBT, he had a discussion with Deputy Chitwood about whether to take Rothenberger
to the hospital or to take him for evaluation by a DRE. At that point, the deputy had been informed
that Rothenberger’s license had been suspended or revoked. Defense counsel then asked the
deputy, “And so you just arrested him for [driving with a suspended license] and then figured
you’d sort the rest of it out later, right?,” to which the deputy responded, “That’s correct.”
Following Deputy Shepard’s testimony, the parties stipulated that Rothenberger’s
Nebraska driver’s license was expired at the time of his arrest. The State rested, and Rothenberger
testified on his own behalf that he had a valid Texas driver’s license at the time of the incident.
According to Rothenberger, he was working in Nebraska at the time but intended to return to
Texas.
The court took the motion to suppress under advisement and issued a written order denying
the motion on February 18, 2014. It found that based on the totality of the circumstances, the
deputy had probable cause to arrest Rothenberger for DUI. The court found the record was “replete
with evidence” that would lead a reasonable officer to believe Rothenberger was impaired.
A jury trial was held on May 6, 2014. At the commencement of trial, Rothenberger renewed
his motion to suppress, which the court denied. Also at the commencement of trial, the court
granted defense counsel’s motion in limine to exclude expert testimony from the certified DRE
who evaluated Rothenberger at the sheriff’s office; the DRE was permitted to testify to his
observations of Rothenberger, but not to provide expert testimony (the reason was that without a
completed chemical urine test, the DRE’s evaluation was incomplete under the DRE protocol).
The State’s first witness was Leeling, who testified consistently with his testimony at the
suppression hearing. Leeling clarified that as he followed the station wagon, it swerved so much
that it crossed the fog lines on both sides of the road.
The majority of Deputy Shepard’s testimony also was consistent with his testimony at the
suppression hearing. At trial, he further testified that during his interaction with Rothenberger, he
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asked him if he had taken any medication, and Rothenberger informed the deputy he had taken
Suboxone at approximately 8 a.m. the prior morning, June 18, 2014. According to the deputy,
Rothenberger never asked for medical help and never gave any indication he was sick or injured.
In addition, Deputy Shepard testified that when he placed Rothenberger under arrest, it was for
suspicion of DUI and driving with a suspended license. The video from Deputy Shepard’s patrol
car camera depicting his traffic stop of Rothenberger was admitted into evidence and portions were
played for the jury.
Sergeant Jeff Chitwood of the Scotts Bluff County sheriff’s office testified he provided
backup to Deputy Shepard during his traffic stop of Rothenberger. Sergeant Chitwood testified
that Rothenberger told the officers he had taken Suboxone at 10 a.m. the morning prior to his
arrest. The sergeant further testified that Rothenberger was unable to maintain his balance without
holding onto either his vehicle or the patrol car. At one point, Rothenberger lost his balance and
started drifting toward the “barrow pit,” and Deputy Shepard caught him. At another time,
Rothenberger lost his balance and looked like he was going to fall into the roadway. According to
the sergeant, he and Deputy Shepard questioned Rothenberger to ascertain if they “had an
impairment case or a medical case,” but nothing indicated Rothenberger was suffering from a
medical condition; Rothenberger never asked for medical help, indicated he suffered from a
physical illness, or requested to be taken to a hospital.
The State’s final witness was Sergeant Mark Bliss of the Scotts Bluff County sheriff’s
office, who testified he was a certified DRE and described his interactions with Rothenberger at
the sheriff’s office following Rothenberger’s arrest. Sergeant Bliss testified he performed a number
of sobriety tests on Rothenberger, which Rothenberger failed or was unable to complete for safety
reasons because he kept losing his balance. Following the sobriety testing, the sergeant read a
post-arrest chemical test advisement form to Rothenberger and requested that he take a chemical
urine test, but Rothenberger declined. The advisement form was admitted into evidence; it stated
in pertinent part:
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
requiring you to submit to a chemical test or tests of your blood, breath, or urine to
determine the concentration of alcohol or drugs in your blood, breath, or urine.
Refusal to submit to such test or tests is a separate crime for which you may be
charged.
The State rested, and defense counsel moved for a directed verdict on both counts.
Regarding count I, the DUI charge, defense counsel argued that although there was evidence of
impairment, there was no evidence it was caused by drugs or alcohol. Regarding count II, the
charge of refusing a chemical test, defense counsel argued that under the Nebraska Administrative
Code, a chemical test can detect marijuana, cocaine, amphetamine, methamphetamine,
phencyclidine, or codeine. Counsel argued there was no evidence “that this was the type of
chemical test that was sought.”
The court granted the motion for a directed verdict as to count I but denied it as to count
II. The court reasoned that although there was “clearly a ton of evidence that he was, to some
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degree, incapacitated,” there was no evidence that a drug caused the impairment, in part because
the State presented no evidence of Suboxone’s effects. As to count II, the court reasoned there was
“plenty of evidence for the jury to consider the issue of refusal.”
Rothenberger did not put on a defense, and the court proceeded to a jury instructions
conference. Defense counsel offered two instructions, one of which stated, “A chemical test is one
performed according to the method approved by the Department of Health and Human Services.
The Method Approved by the Department of Health and Human Services for drug testing is set
forth in title 177 NAC 7.” The other instruction stated, “Drug for purposes of a chemical test means
any of the following: Marijuana, cocaine, morphine, codeine, phencyclidine, amphetamine, or
methamphetamine.” The court declined to give either instruction.
The jury returned a verdict finding Rothenberger guilty of refusing to submit to a chemical
test. The court sentenced Rothenberger to 6 months’ probation, revoked his license for 60 days,
and imposed a fine of $500 plus the costs of prosecution.
Rothenberger appealed to the district court, assigning as error that the county court erred
in, among other things, (1) sustaining the motion to suppress, (2) failing to sustain the motion for
directed verdict, and (3) failing to give the jury his proposed instructions. The district court
affirmed the county court’s judgment, and Rothenberger timely appeals to this court.
ASSIGNMENTS OF ERROR
Rothenberger assigns, restated, that the district court erroneously affirmed the county
court’s judgment, because the county court erred in (1) determining there was probable cause for
his arrest, (2) failing to direct a verdict on the charge of refusal to submit to a chemical test, and
(3) refusing to give his proposed jury instructions. Although Rothenberger does not specifically
assign that the county court erred in overruling his motion to suppress, the court determined there
was probable cause for Rothenberger’s arrest when overruling his motion to suppress; therefore,
we interpret his first assignment of error as challenging the overruling of his motion to suppress.
STANDARD OF REVIEW
Both the district court and a higher appellate court generally review appeals from the
county court for error appearing on the record. State v. Avey, 288 Neb. 233, 846 N.W.2d 662
(2014). When reviewing a judgment for error 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. Id.
In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, we apply a two-part standard of review. State v. Scheffert, 279 Neb. 479,
778 N.W.2d 733 (2010). Regarding historical facts, we review the trial court’s findings for clear
error. Id. But whether those facts trigger or violate Fourth Amendment protections is a question of
law that we review independently of the trial court’s determination. Id.
In a criminal case, a 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, lacking probative value, that a finding of guilt based on such evidence cannot be
sustained. State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014). If there is any evidence which
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will sustain a finding for the party against whom a motion for directed verdict is made, the case
may not be decided as a matter of law, and a verdict may not be directed. Id.
Whether the jury instructions given by a trial court are correct is a question of law. State v.
Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015). When reviewing questions of law, an appellate
court resolves the questions independently of the conclusion reached by the lower court. Id.
ANALYSIS
Motion to Suppress.
Rothenberger argues that the county court erred in determining there was probable cause
for his arrest (which, as stated above, the court determined in the context of overruling
Rothenberger’s motion to suppress). In support, Rothenberger makes two arguments: (1) the
erroneous information that Deputy Shepard received from dispatch concerning Rothenberger’s
Nebraska driver’s license (which was expired, not suspended or revoked) could not establish
probable cause to arrest; and (2) there was no probable cause to arrest for DUI because Deputy
Shepard was not a certified DRE and, therefore, was unable to rule out a medical condition as the
cause of Rothenberger’s impairment. According to Rothenberger, “[w]here an officer does not
reasonably know if a person is under the influence or suffering from some other condition, then
probable cause does not exist for an arrest.” Brief for appellant at 9.
The State responds that the deputy was not required to have a DRE evaluate Rothenberger
to develop probable cause to arrest him for DUI. According to the State, Deputy Shepard’s and
Sergeant Chitwood’s observations of Rothenberger’s impairment, combined with their testimony
that there was no indication that a medical condition was to blame, were sufficient to establish
probable cause to arrest Rothenberger for DUI. Alternatively, the State argues the officers had
probable cause to arrest Rothenberger for failure to have evidence of insurance.
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. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014). An arrest constitutes a seizure that must be
justified by probable cause 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. Where, as here, a motion to suppress
is denied pretrial and again during trial on renewed objection, an appellate court considers all the
evidence, both from trial and from the hearing on the motion to suppress. State v. Bromm, 285
Neb. 193, 826 N.W.2d 270 (2013).
Deputy Shepard testified at trial that he arrested Rothenberger, at least in part, on suspicion
of DUI, which is confirmed by the post-arrest chemical test advisement form that advised
Rothenberger, “You are under arrest for [DUI].” Although Deputy Shepard testified at the
suppression hearing that he arrested Rothenberger at the scene for driving with a suspended
license, we can consider his testimony from both the trial and the suppression hearing. See id.
Furthermore, an officer need not identify the correct crime when he or she arrests a suspect, as
long as probable cause exists to arrest for some crime. State v. Sassen, 240 Neb. 773, 484 N.W.2d
469 (1992). See, also, Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004)
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(an “arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the
existence of probable cause”). Therefore, we may consider whether Deputy Shepard had probable
cause to arrest Rothenberger for DUI despite any conflict between his testimony at trial and at the
suppression hearing.
As pertinent here, § 60-6,196 makes it unlawful for a person to operate or be in actual
physical control of a motor vehicle while under the influence of alcoholic liquor or of any drug.
The Nebraska Supreme Court has interpreted the phrase “under the influence of alcoholic liquor
or any drug” to mean “the ingestion of alcohol or drugs in an amount sufficient to impair to any
appreciable degree the driver’s ability to operate a motor vehicle in a prudent and cautious
manner.” State v. Falcon, 260 Neb. 119, 123, 615 N.W.2d 436, 439 (2000).
The facts suggesting that Rothenberger was too impaired to operate a motor vehicle were
manifold. Leeling testified to his observations of Rothenberger’s driving, including that his station
wagon fluctuated between 15 and 60 m.p.h. and swerved so much it crossed the fog lines on both
sides of the road, causing an oncoming car to veer into Leeling’s lane. Deputy Shepard observed
Rothenberger’s vehicle drive under the speed limit “by a significant amount,” cross the fog line
twice, and cross approximately two feet over the center line. During the resulting traffic stop,
Deputy Shepard observed that Rothenberger had slow, slurred speech and difficulty multitasking.
Both the deputy and Sergeant Chitwood observed Rothenberger having difficulty standing or
maintaining his balance. Deputy Shepard testified Rothenberger failed the walk-and-turn and
one-leg-stand tests; in fact, Rothenberger could not maintain his balance while receiving
instructions on the walk-and-turn test. According to Sergeant Chitwood, Rothenberger could not
maintain his balance without holding onto a vehicle; at various points he almost fell into the
“barrow pit” and the roadway.
There were also facts to support an objectively reasonable belief that Rothenberger’s
impairment resulted from his consumption of a drug. Deputy Shepard did not smell alcohol on
Rothenberger’s breath, and the PBT result was negative for the presence of alcohol. Both Deputy
Shepard and Sergeant Chitwood testified at trial that Rothenberger told them during the traffic stop
that he had taken Suboxone the morning prior to his arrest; the video played for the jury confirmed
this. Furthermore, Chitwood testified that he and Deputy Shepard questioned Rothenberger to
ascertain if they “had an impairment case or a medical case,” but nothing indicated Rothenberger
was suffering from a medical condition. According to Sergeant Chitwood, Rothenberger never
asked for medical help, indicated he suffered from a physical illness, or requested to be taken to a
hospital. Likewise, according to Deputy Shepard, Rothenberger never asked for medical help or
gave any indication he was sick or injured.
Given these facts, we conclude there was an objectively reasonable basis for the officers to
suspect Rothenberger had committed the crime of DUI. It is apparent the officers attempted to
ascertain a medical cause of Rothenberger’s impairment, and no indication of a medical cause
arose. The fact that Deputy Shepard was not a certified DRE did not render his belief that
Rothenberger had committed DUI objectively unreasonable, nor did it undermine the existence of
probable cause to arrest for DUI.
Rothenberger relies on State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009), and State v.
Kellogg, 22 Neb. Ct. App. 638, 859 N.W.2d 355 (2015), to support his contention that, in essence, no
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probable cause to arrest for drug-based DUI can be found where a certified DRE has not evaluated
the suspect and ruled out a medical cause of the suspect’s impairment. The issue in Daly was
whether DRE protocol was a sufficiently valid methodology under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), to support a
DRE’s testimony at trial on a DUI charge that, based on his observations, a suspect was under the
influence of drugs. Daly, supra. In holding that the DRE protocol was a sufficiently valid
methodology and that the DRE’s testimony was admissible, the court explained that a DRE
examination involves, among other things, the ruling in or out of medical conditions that could be
responsible for the suspect’s impairment. Id. However, the court did not address the role, if any,
that DRE protocol may play in establishing probable cause to arrest for DUI; nor did it hold that
testimony by a DRE is required to establish a defendant’s guilt of drug-based DUI. Therefore, we
do not believe Daly impacts our analysis in this case.
The second case on which Rothenberger relies, Kellogg, supra, is also unavailing. In that
case, the issue was whether a law enforcement officer had probable cause to arrest the defendant
for DUI. During a traffic stop for speeding, the arresting officer, who was a certified DRE,
observed the defendant appear confused, overactive, and unable to concentrate or sit still; for
example, the defendant was unable to produce her driver’s license upon request, even though the
officer could see the license in the defendant’s wallet. The defendant also had bloodshot, glassy
eyes, displayed impairment on field sobriety tests, and admitted to having taken prescription
medication. After a PBT result was negative for the presence of alcohol, the officer placed the
defendant under arrest for DUI.
The trial court determined there was probable cause for the arrest, and this court affirmed.
This court reasoned that under the totality of the circumstances, the officer had sufficient probable
cause to arrest for DUI; although the court noted the officer’s “specific training with respect to
drug recognition,” Id. at 648, 859 N.W.2d at 363, the focus of this court’s probable cause analysis
was on the totality of the officer’s observations. Nothing in the court’s analysis supports
Rothenberger’s assertion that “it was the officer’s experience with drug drivers [in Kellogg] that
allowed him to exclude medical issues and make a probable cause determination that a crime had
been committed.” Brief for appellant at 10. Notably, in the analysis of probable cause, this court
in Kellogg, supra, did not make any reference to the officer having ruled out medical conditions
as the cause of the driver’s impairment.
Because we conclude the county court properly determined there was probable cause to
arrest Rothenberger for DUI, we need not address Rothenberger’s argument that there was not
probable cause to arrest him for driving with a suspended license; nor do we address the State’s
argument that there was probable cause to arrest for failure to have evidence of insurance. See
State v. Planck, 289 Neb. 510, 856 N.W.2d 112 (2014) (an appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the case and controversy before it).
Motion for Directed Verdict.
Rothenberger next argues the county court erred in failing to grant his motion for directed
verdict on count II, the charge of refusing to submit to a chemical test. In support, Rothenberger
makes two arguments: (1) there was no basis to request a chemical test because there was no
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evidence he was impaired by a drug; and (2) there was no evidence he refused a “chemical test,”
which according to Rothenberger is one that detects marijuana, cocaine, morphine, codeine,
phencyclidine, amphetamine, or methamphetamine.
Section 60-6,197(1) provides that any person who operates or has actual physical control
of a motor vehicle in this state is deemed to have given his or her consent to a chemical test or tests
of his or her blood, breath, or urine for the purpose of detecting alcohol or drugs. Section 60-
6,197(2) provides:
Any peace officer who has been duly authorized to make arrests for violations of
traffic laws of this state or of ordinances of any city or village may require any person
arrested for any offense arising out of acts alleged to have been committed while the person
was driving or was in actual physical control of a motor vehicle while under the influence
of alcoholic liquor or drugs 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 when the officer has reasonable grounds to believe
that such person was driving or was in the actual physical control of a motor vehicle in this
state while under the influence of alcoholic liquor or drugs in violation of section 60-6,196.
The person “shall be advised that refusal to submit to such test or tests is a separate crime for which
the person may be charged.” § 60-6,197(5). If the person refuses to submit to a properly requested
chemical test, he or she is subject to license revocation and is guilty of a Class W misdemeanor or
greater for subsequent offenses. §§ 60-6,197(2); 60-1,197.03.
We first address Rothenberger’s argument that there was no basis to request a chemical
test because there was no evidence his impairment was caused by a drug. Again, Rothenberger
maintains the arresting deputy was not a certified DRE and was unqualified to rule out a medical
cause of his impairment.
We have already rejected this argument. We determined above that Rothenberger was
validly arrested for DUI; therefore, it was proper to request a chemical test pursuant to § 60-6,197.
We further note that although Rothenberger focuses on Deputy Shepard’s lack of DRE
certification, the officer who actually requested the chemical test was a certified DRE. Sergeant
Bliss testified he requested that Rothenberger undergo a chemical urine test after observing
Rothenberger fail a number of sobriety tests. This supports the conclusion that there were
reasonable grounds to believe Rothenberger had committed DUI and to request chemical testing.
Rothenberger’s second argument--that he did not refuse to submit to a “chemical
test”--fares no better. In support of this argument, Rothenberger cites chapter 7 of title 177 of the
Nebraska Administrative Code (Code), which sets forth regulations and a permitting process for
the analysis by chemical test of an individual’s urine for drug content. The regulations define
“[c]hemical test” as “an examination which measure’s [sic] the presence of a drug by chemical
reaction, or chemical detection using a laboratory instrument,” and “drug” as “any of the
following[:] [m]arijuana, cocaine, morphine, codeine, phencyclidine, amphetamine, or
methamphetamine.” 177 Neb. Admin. Code, ch. 7, §§ 001.5, 001.13 (2007).
These regulations are implemented pursuant to the charge in Neb. Rev. Stat. § 60-6,201(3)
(Reissue 2010), which provides in pertinent part that, to be considered valid, “tests of blood, breath,
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or urine made under section 60-6,197 . . . 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.” The statute further provides that a test made in
conformity with the requirements is competent evidence in any prosecution for DUI. § 60-
6,201(1).
However, nothing in § 60-6,201 or in chapter 7 of title 177 of the Code says anything about
a prosecution for refusal to submit to a chemical test. Notably, the Nebraska Rules of the Road do
not define the word “drug,” and they make it a crime to operate a motor vehicle while under the
influence of “any drug.” § 60-6,196(1)(a). An officer may request a post-arrest chemical test as
long as the officer has reasonable grounds to believe the person committed DUI; the authority to
request a chemical test is not limited to DUIs involving certain drugs. See § 60-6,197(3). A person
is guilty of a crime if he or she refuses a properly requested chemical test; neither the type of drug
suspected to be causing the person’s impairment nor the type of chemical test to be performed is
an element of the crime. See § 60-6,197(3). Therefore, Rothenberger’s reliance on the Code
provisions is misplaced.
Based on the foregoing, we conclude there was evidence to sustain a finding of guilt on the
charge of refusing to submit to a chemical test, such that the county court properly overruled
Rothenberger’s motion for directed verdict on count II. See State v. Elseman, 287 Neb. 134, 841
N.W.2d 225 (2014) (a 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,
lacking probative value, that a finding of guilt based on such evidence cannot be sustained).
Jury Instructions.
Rothenberger’s final argument is that the county court erred in refusing to give his two
proposed jury instructions. Again, those instructions defined “chemical test” as “one performed
according to the method approved by the Department of Health and Human Services,” and defined
“[d]rug for purposes of a chemical test” as “any of the following: Marijuana, cocaine, morphine,
codeine, phencyclidine, amphetamine, or methamphetamine.” According to Rothenberger, the
proposed instructions would have directed “the jury to examine the approved methods and
determine if the test met the standard.” Brief for appellant at 15.
As we explained above, neither the type of drug suspected to be causing the person’s
impairment nor the type of chemical test to be performed is an element of the crime of refusing to
submit to a chemical test. See § 60-6,197(3). Therefore, the county court did not err in declining
to give Rothenberger’s proposed instructions, which would have led to confusion and potentially
caused the jury to base its verdict on irrelevant considerations.
CONCLUSION
For the foregoing reasons, we affirm the district court’s order which affirmed the county
court’s judgment.
AFFIRMED.
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