State v. Jasa , 297 Neb. 822 ( 2017 )


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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. JASA
    Cite as 
    297 Neb. 822
    State of Nebraska, appellee, v.
    Jamos M. Jasa, appellant.
    ___ N.W.2d ___
    Filed September 22, 2017.   No. S-16-989.
    1.	 Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. In reviewing a trial court’s ruling on a motion to
    suppress based on a claimed violation of the Fourth Amendment, an
    appellate court applies a two-part standard of review. Regarding histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment
    protections is a question of law that an appellate court reviews indepen-
    dently of the trial court’s determination.
    2.	 Administrative Law: Statutes: Appeal and Error. The meaning and
    interpretation of statutes and regulations are questions of law which an
    appellate court resolves independently of the lower court’s conclusion.
    3.	 Constitutional Law: Search and Seizure: Investigative Stops:
    Arrests: Probable Cause. The Fourth Amendment guarantees the right
    to be free of unreasonable search and seizure. This guarantee requires
    that an arrest be based on probable cause and limits investigatory stops
    to those made upon an articulable suspicion of criminal activity.
    4.	 Criminal Law: Investigative Stops: Motor Vehicles: Police Officers
    and Sheriffs. A traffic stop requires only that the stopping officer have
    specific and articulable facts sufficient to give rise to a reasonable sus-
    picion that a person has committed or is committing a crime.
    5.	 Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
    Probable Cause. If an officer has probable cause to stop a traffic viola-
    tor, the stop is objectively reasonable.
    6.	 ____: ____: ____: ____. A traffic violation, no matter how minor, cre-
    ates probable cause to stop the driver of a vehicle.
    7.	 Judgments: Appeal and Error. Where the record adequately dem-
    onstrates that the decision of a trial court is correct—although such
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    correctness is based on a ground or reason different from that assigned
    by the trial court—an appellate court will affirm.
    8.	 Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof.
    The four foundational elements which the State must establish as a foun-
    dation for the admissibility of a breath test in a driving under the influ-
    ence prosecution are as follows: (1) that the testing device was working
    properly at the time of the testing, (2) that the person administering the
    test was qualified and held a valid permit, (3) that the test was properly
    conducted under the methods stated by the Department of Health and
    Human Services, and (4) that all other statutes were satisfied.
    9.	 Statutes. Statutory language is to be given its plain and ordinary
    meaning.
    10.	 Statutes: Legislature: Intent: Appeal and Error. An appellate court
    will not look beyond a statute to determine the legislative intent when
    the words are plain, direct, or unambiguous.
    11.	 Appeal and Error. In appellate proceedings, the examination by the
    appellate court is confined to questions which have been determined by
    the trial court.
    Appeal from the District Court for Lancaster County: Susan
    I. Strong, Judge. Affirmed.
    Brad Roth, of McHenry, Haszard, Roth, Hupp, Burkholder
    & Blomenberg, P.C., L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    K elch, J.
    INTRODUCTION
    Following a jury trial, Jamos M. Jasa appeals his convic-
    tion and sentence for aggravated driving under the influence
    (DUI), third offense, a Class IIIA felony under Neb. Rev.
    Stat. §§ 60-6,196 (Reissue 2010) and 60-6,197.03(6) (Cum.
    Supp. 2014). Jasa challenges the order of the district court
    for Lancaster County that denied his motion to suppress the
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    results of a chemical breath test. We conclude that the district
    court did not err in finding that law enforcement (1) had rea-
    sonable suspicion to initiate a traffic stop, (2) administered a
    15-minute observation period prior to the chemical breath test
    in accord­ance with title 177 of the Nebraska Administrative
    Code, and (3) complied with Neb. Rev. Stat. § 60-6,199
    (Reissue 2010) by allowing access to a telephone to arrange
    independent testing. Therefore, we affirm.
    BACKGROUND
    On February 14, 2015, Jasa was the subject of a traffic stop,
    which led to a DUI investigation and a chemical breath test
    showing an alcohol concentration of .191 grams of alcohol per
    210 liters of Jasa’s breath. The State charged Jasa pursuant to
    §§ 60-6,196 and 60-6,197.03(6) with DUI, third offense, while
    having a breath alcohol concentration of .15 grams of alcohol
    per 210 liters of breath, or more.
    Prior to trial, Jasa moved to suppress his chemical breath
    test result on several grounds. In relevant part, he alleged
    (1) that law enforcement officers lacked reasonable suspicion
    or probable cause to stop his vehicle, making any evidence
    obtained as a result of the stop inadmissible; (2) that the chemi-
    cal breath test was not conducted in compliance with title 177
    of the Nebraska Administrative Code, because law enforce-
    ment officers failed to properly and continuously monitor him
    for 15 minutes prior to the breath test; and (3) that Jasa was
    prohibited from obtaining independent testing of his alcohol
    concentration, which rendered his breath test result inadmis-
    sible under § 60-6,199.
    At the hearing on Jasa’s motion to suppress, the evidence
    established that on February 14, 2015, shortly after mid-
    night, Officers Kenneth Morrow and Jonathan Sears of the
    Lincoln Police Department were on patrol together when they
    received a dispatch about a vehicle that was “all over the
    road” at First and West O Streets in Lincoln, Nebraska. The
    dispatch center received the initial report from an employee
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    of Lincoln Fire and Rescue (LFR). The report originated from
    LFR “Engine 3,” which is based at a firehouse near First and
    West O Streets.
    Morrow and Sears arrived in the area within a few minutes.
    At approximately Third and West O Streets, they saw a pickup
    that matched the description and the license plate number pro-
    vided by LFR.
    Morrow testified that they observed the pickup weaving
    in its lane and saw both the front and rear driver’s side tires
    completely cross over the dashed lane divider line. The district
    court received into evidence Lincoln Mun. Code § 10.14.110
    (1990), which prohibits a motorist’s vehicle from straddling the
    lane line with its wheels for a distance greater than required to
    safely change lanes.
    Morrow testified that after seeing the pickup cross the lane
    line with its driver’s side tires, he activated his cruiser camera,
    which was able to “jump back . . . 10 seconds on the video.”
    A copy of the resulting video was received at the suppression
    hearing. Morrow testified that the video shows the pickup
    weaving within its lane and then crossing the lane line. Due to
    the quality of the video, lighting, and movement, the lane line
    is difficult to discern during portions of the video; however,
    it does appear that the pickup weaved in its lane and could
    have briefly crossed the lane line with both driver’s side tires.
    Morrow acknowledged that the quality of the video was “not
    great,” but stated that from his perspective, he was able to see
    the driver’s side tires cross the lane line. After perceiving this
    traffic violation, the officers initiated a traffic stop and identi-
    fied the pickup’s driver as Jasa.
    Morrow testified that Jasa’s driving behaviors were con-
    sistent with someone who is under the influence of alcohol
    and that he administered field sobriety tests and a preliminary
    breath test at the scene of the traffic stop. Jasa was ultimately
    arrested for DUI.
    While detained in the police cruiser, Jasa twice requested a
    blood test. Morrow testified that the officers could have taken
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    Jasa to a hospital for a chemical blood test. Instead, the officers
    transported Jasa to the Lancaster County jail for a chemical
    breath test. They arrived at the jail at 1:04 a.m.
    While Sears prepared for the breath test, Morrow accom-
    panied Jasa to a different room where Jasa changed into a jail
    uniform. Morrow observed Jasa for 15 minutes prior to the
    chemical breath test, monitoring him for belching, vomiting,
    or anything that would bring alcohol from his stomach to his
    mouth and affect the accuracy of the test. Morrow testified
    that he observed none of these behaviors.
    Sears testified that he was aware that the 15-minute observa-
    tion had taken place but that Morrow did not directly commu-
    nicate with Sears about his observations. Sears explained that
    sometimes, when two officers conduct a DUI investigation,
    one officer carries out the observation period while the other
    administers the chemical test, but that normally, the subject
    sits beside the testing machine for the 15-minute observa-
    tion period.
    Morrow testified that he explained the chemical breath test
    process to Jasa, and Sears testified that he, Sears, completed
    the steps necessary to administer the test. At some point,
    Morrow filled out “Attachment 16,” a “checklist technique
    . . . approved and prescribed” by title 177 of the Nebraska
    Administrative Code. The checklist requires the following
    tasks: verify the testing instrument’s maintenance, “[o]bserve
    the subject for 15 minutes prior to testing,” record the time
    the observation began, attach a clean mouthpiece, verify that
    a complete breath sample was obtained with no errors, and
    indicate the alcohol content of the breath sample obtained. The
    bottom of the form includes a line above the words “Permit
    Holder.” Morrow checked the box next to each task on the
    form, filled in the necessary information, and identified Sears
    as the permit holder. Morrow testified that normally, the offi-
    cer who administers the breath test is identified as the permit
    holder. Morrow and Sears both had Class B permits to operate
    the testing instrument.
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    Sears administered the chemical breath test at 1:22 a.m.
    Both Morrow and Sears were present. The test indicated that
    Jasa had a breath alcohol concentration of .191 grams of alco-
    hol per 210 liters of breath.
    Immediately after the chemical breath test, Morrow read
    Jasa a “physician’s advisement,” which informed Jasa that
    under § 60-6,199, he had a right to undergo independent test-
    ing but would have to procure and pay for it himself. Morrow
    further explained to Jasa that Jasa would have to ask someone
    to come to the jail to perform an independent test. Jasa asked
    how he could arrange such testing, and Morrow informed him
    that he would be allowed to use the telephone and would have
    to speak with the jail staff for further details. Additionally,
    Morrow told Jasa that he would have to remain in jail until his
    court date 3 days later.
    Jasa was cited for aggravated DUI, third offense, a felony.
    Morrow testified that Jasa had to be lodged in jail because his
    offense was not bondable. Sears explained that the offense was
    not bondable because Jasa was arrested during the weekend
    and a judge could not set bond for several days.
    Both Morrow and Sears testified that neither of them did
    anything to inhibit Jasa’s ability to arrange independent test-
    ing. Morrow stated that inmates at the Lancaster County jail
    are allowed to make telephone calls and to have visitors. Both
    officers testified that they could not recall anyone ever coming
    to the jail to administer an independent blood test, but Morrow
    pointed out that he did not “stick with the people down at the
    jail” and that, in his role as a police officer, he would never
    see an arrestee receiving a visitor and did not know how the
    process worked.
    Jasa testified that Morrow and Sears did not offer to trans-
    port him to the hospital for a blood test or to have someone
    come to the jail for a blood test, nor did they provide any
    information that he could use to obtain a blood test. Jasa con-
    firmed that he was told he could arrange blood testing on his
    own, but said he had no idea whom to call or how to arrange
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    such testing at 2 a.m., especially since he is not from Lincoln.
    However, Jasa acknowledged that he used to live in Lincoln
    and had access to a telephone while he was in jail on the night
    of his arrest.
    Over the 31⁄2 days that Jasa spent in jail for the present
    offense, he made 45 telephone calls. The evidence showed
    that at 1:56 a.m. on the night of his arrest, he first called his
    current attorney, but was unsuccessful in reaching him. Jasa
    testified that he also called his brother and a friend several
    times to attempt to arrange for bond so that he could obtain an
    independent test upon his release and because, he testified, he
    did not realize he was nonbondable until several hours after his
    incarceration. Jasa acknowledged that, while in jail, he never
    attempted to contact a physician, a hospital, or anyone else to
    obtain a blood test.
    Jasa testified that on the morning of the suppression hear-
    ing, he called several places in Lincoln to inquire whether they
    perform independent blood tests at the jail: the main desk, the
    laboratory, and the emergency room at a Lincoln hospital; the
    laboratory and the emergency room at another Lincoln hospi-
    tal; and two other testing facilities, as well as the Lancaster
    County Detention Center’s medical department. Jasa testified
    that one of the hospitals had referred him to the two other test-
    ing facilities. Jasa stated that he made his best effort to find
    a facility that would draw blood at the jail and that he spoke
    to about 15 people, but he did not obtain the names of the
    employees who fielded his calls. Jasa testified that each facil-
    ity informed him that it does not come to the jail to perform
    independent blood tests.
    The district court denied Jasa’s motion to suppress. First,
    while the district court made the factual finding that Morrow
    observed Jasa’s pickup weaving within his lane and crossing
    over the lane line with the driver’s side tires, the district court
    ultimately relied on the observation of weaving alone, along
    with LFR’s report, in determining that the traffic stop was
    justified by reasonable suspicion of criminal activity. Second,
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    the district court concluded that it was not improper under
    title 177 for the officers to “work[] together” to observe Jasa
    during the 15-minute period prior to the breath test. Further,
    the district court reasoned that even if the officers did not
    strictly comply with the 15-minute observation requirement,
    the 15-minute observation period is a “‘technique’” rather than
    a “‘method’” under title 177, and that thus, any deficiency
    in executing it would affect credibility, but not admissibil-
    ity. Finally, the district court concluded that suppression of
    the breath test was not warranted under § 60-6,199 because,
    although the officers did not assist Jasa in obtaining indepen-
    dent testing, law enforcement personnel did not intentionally
    impede his ability to do so.
    After overruling Jasa’s motion to suppress, the district court
    conducted a jury trial. The district court received evidence
    of the chemical breath test result over Jasa’s timely objec-
    tions and overruled his renewed motion to suppress. The jury
    found Jasa guilty of DUI with an alcohol concentration of .15
    or more.
    The district court held an enhancement hearing and deter-
    mined the current conviction to be Jasa’s third DUI offense.
    The district court sentenced Jasa to 36 months’ probation with
    various terms and conditions and 60 days in jail with credit for
    time served. Further, the district court revoked Jasa’s opera-
    tor’s license for 5 years, with the possibility of obtaining an
    ignition interlock device after 45 days.
    This appeal followed.
    ASSIGNMENTS OF ERROR
    Jasa assigns that the district court erred in (1) finding
    reasonable suspicion to initiate the stop, (2) finding that the
    15-minute observation period prior to the breath test had been
    properly executed pursuant to title 177, (3) finding no viola-
    tion of § 60-6,199, and (4) not suppressing the breath test and
    allowing it to be offered into evidence.
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    STANDARD OF REVIEW
    [1] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    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, but whether those facts trig-
    ger or violate Fourth Amendment protections is a question of
    law that an appellate court reviews independently of the trial
    court’s determination. State v. McCumber, 
    295 Neb. 941
    , 
    893 N.W.2d 411
    (2017).
    [2] The meaning and interpretation of statutes and regula-
    tions are questions of law which an appellate court resolves
    independently of the lower court’s conclusion. State v.
    McIntyre, 
    290 Neb. 1021
    , 
    863 N.W.2d 471
    (2015).
    ANALYSIS
    Legal Basis for Traffic Stop
    [3-5] Jasa asserts that the officers did not have a legal basis
    to stop his vehicle. He contends that LFR’s tip and the officers’
    independent observations were insufficient to create reason-
    able suspicion. The Fourth Amendment guarantees the right to
    be free of unreasonable search and seizure. State v. Bol, 
    288 Neb. 144
    , 
    846 N.W.2d 241
    (2014). This guarantee requires that
    an arrest be based on probable cause and limits investigatory
    stops to those made upon an articulable suspicion of criminal
    activity. 
    Id. A traffic
    stop requires only that the stopping officer
    have specific and articulable facts sufficient to give rise to a
    reasonable suspicion that a person has committed or is com-
    mitting a crime. 
    Id. In this
    context, if an officer has probable
    cause to stop a traffic violator, the stop is objectively reason-
    able. 
    Id. [6] A
    police officer has probable cause to stop a defendant’s
    vehicle, independent of an anonymous tip, when the officer
    observes a traffic violation. See State v. Sanders, 
    289 Neb. 335
    , 
    855 N.W.2d 350
    (2014). A traffic violation, no matter how
    minor, creates probable cause to stop the driver of a vehicle.
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    Id. In reviewing 
    a challenge to the legality of an automobile
    stop, the question is not whether the officer issued a citation
    for a traffic violation or whether the State ultimately proved
    the violation; instead, a stop of a vehicle is objectively reason-
    able when the police officer has probable cause to believe that
    a traffic violation has occurred. 
    Id. Here, Jasa
    claims that the traffic stop was not justified
    because he did not commit a traffic violation under § 10.14.110
    of the Lincoln Municipal Code. That section of the code pro-
    hibits driving with “one front and rear wheel . . . on one side
    of [the lane] line and the other front and rear wheel . . . on the
    opposite side of the [lane] line for a distance more than is nec-
    essary to change from one traffic lane to the other with safety.”
    Specifically, Jasa claims that his vehicle “did not straddle the
    [lane] line with both tires at the same time as required under
    the code.” Brief for appellant at 18.
    The State contends that Jasa committed a traffic viola-
    tion which provided probable cause for the traffic stop. To
    support its position, the State first notes the district court’s
    factual finding that Morrow observed Jasa’s vehicle “weav-
    ing within his lane and at one point crossing over the lane
    line with the driver’s side tires.” Despite this factual finding
    by the district court, in its holding, the court relied upon the
    call from dispatch and Jasa’s vehicle weaving within the lane
    as reasonable suspicion for the traffic stop. The State requests
    that we accept these factual findings, because on appeal, we
    review a trial court’s factual findings for a motion to suppress
    based on a claimed violation of the Fourth Amendment for
    clear error. See State v. McCumber, 
    295 Neb. 941
    , 
    893 N.W.2d 411
    (2017). Although the video is not entirely clear, Morrow
    testified that from his perspective, he observed both driver’s
    side tires cross the lane line. We find it was not clearly erro-
    neous for the district court to accept Morrow’s testimony on
    this issue.
    [7] Next, based upon these facts, the State argues that we
    should find probable cause for the traffic stop based upon a
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    violation of the law. And we do independently review whether
    the facts violate the Fourth Amendment protections as a ques-
    tion of law. See State v. 
    McCumber, supra
    . With the district
    court’s having found that Morrow observed both of Jasa’s
    driver’s side wheels cross the lane line, it was objectively
    reasonable to conclude that a traffic violation had occurred.
    Where the record adequately demonstrates that the decision
    of a trial court is correct—although such correctness is based
    on a ground or reason different from that assigned by the trial
    court—an appellate court will affirm. State v. Huff, 
    279 Neb. 68
    , 
    776 N.W.2d 498
    (2009). Therefore, we find no error by the
    district court in concluding that reasonable suspicion justified
    the traffic stop.
    A dministration of Breath Test
    Pursuant to Title 177
    [8] Jasa next disputes the admissibility of the chemical
    breath test results. The four foundational elements which the
    State must establish as foundation for the admissibility of a
    breath test in a DUI prosecution are as follows: (1) that the
    testing device was working properly at the time of the testing,
    (2) that the person administering the test was qualified and
    held a valid permit, (3) that the test was properly conducted
    under the methods stated by the Department of Health and
    Human Services, and (4) that all other statutes were satisfied.
    State v. Baue, 
    258 Neb. 968
    , 
    607 N.W.2d 191
    (2000). Jasa’s
    contentions focus on the third foundational element.
    Title 177 is the governing Department of Health and Human
    Services regulation in this case. Title 177 authorizes Class B
    permit holders to perform a chemical test to analyze a subject’s
    breath for alcohol content using an approved method. See 177
    Neb. Admin. Code, ch. 1, § 001.07B (2014). Title 177 further
    sets forth the “Operating Rules for Class B Permit,” and pro-
    vides, “To determine the alcohol content in breath, a Class B
    permit holder shall . . . [u]se the appropriate checklist . . . .”
    177 Neb. Admin. Code, ch. 1, §§ 007.02 and 007.02B (2014).
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    Under title 177, the testing machine used here is among the
    “[a]pproved evidentiary breath testing methods and instruments
    . . .” for which the “[c]hecklist technique . . .” in attachment
    16 is approved and required. 177 Neb. Admin. Code, ch. 1,
    §§ 008.01, 008.01A, and 008.01C (2014). As described above,
    attachment 16 consists of a checklist of tasks including, among
    other things, “[o]bserve the subject for 15 minutes prior to
    testing.” At the bottom of the checklist is a line with the words
    “Permit Holder” underneath.
    Here, Morrow observed Jasa for 15 minutes before Sears,
    the named permit holder, administered the chemical breath
    test. Jasa claims that the breath test was not properly conducted
    under the methods stated by the Department of Health and
    Human Services in title 177, because Sears failed to observe
    Jasa for 15 minutes prior to administering the test and instead
    relied upon Morrow’s 15-minute observation of Jasa. Further,
    Jasa contends that Sears could not rely on the knowledge of
    another officer to satisfy the observation period required by
    attachment 16 of title 177, because he and Morrow did not dis-
    cuss the 15-minute observation period conducted by Morrow
    before Sears administered the breath test.
    Jasa points to DeBoer v. Nebraska Dept. of Motor Vehicles,
    
    16 Neb. Ct. App. 760
    , 761, 
    751 N.W.2d 651
    , 654 (2008), where
    the Nebraska Court of Appeals referred to the checklist as a
    “form by regulation [that] must be completed by an officer
    when conducting a breath test.” But that descriptive phrase
    occurred only in the background section of that particular
    opinion and was not part of the Court of Appeals’ holding in
    DeBoer. Although it may be typical, and even the best practice,
    for one officer both to administer the breath test and to com-
    plete the checklist, title 177 does not require that one officer
    perform both duties.
    In this instance, competent evidence at the suppression
    hearing established that each requirement of attachment 16
    had been performed. Morrow, a Class B permit holder, testi-
    fied that he personally observed Jasa for the entire 15-minute
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    observation period and perceived nothing that would affect the
    accuracy of the test administered by Sears. Morrow further
    verified that he was present for the breath test and completed
    attachment 16, which shows that each foundational require-
    ment had been met; and other than addressing the manner of
    executing the 15-minute observation period, Jasa presented no
    evidence or arguments to challenge the form’s validity. Based
    on this evidence, we conclude the district court did not err in
    admitting the chemical breath test result, despite Jasa’s asser-
    tions that it lacked sufficient foundation under title 177.
    We digress to note the district court’s finding that even if
    the officers had not strictly complied with title 177, the breath
    test results were admissible, because the 15-minute observa-
    tion period was a technique rather than a method, and, as such,
    any failure to strictly adhere to it affected only the weight and
    credibility of the evidence, not its admissibility. In reaching
    this conclusion, the district court cited State v. Miller, 
    213 Neb. 274
    , 281, 
    328 N.W.2d 769
    , 773 (1983), where we stated,
    “[f]ailure to comply with a technique is not a failure to prove a
    foundational element, but affects weight and credibility only.”
    Jasa, however, argues that the analysis in Miller does not apply
    in this instance, because Miller analyzed a prior rule of the
    then Department of Health’s rules and regulations, rather than
    title 177. Further, Jasa contends that under title 177, “meth-
    ods” and “techniques” are intertwined and thus, no distinction
    between the two should apply here.
    In reaching our conclusion in Miller, we distinguished
    between method and technique, as those terms were expressly
    defined in the prior rule. But before arriving at that distinc-
    tion, we stated that in order to admit the results of a chemi-
    cal test, the statutory foundation must be met. We determined
    that such foundation was satisfied, and not until later in the
    opinion did we undertake the discussion of “method” and
    “technique” to address a requested jury instruction that invited
    the jury to assess the admissibility of the evidence. Therefore,
    the key question is whether the State proved that the express
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    requirements of the Department of Health and Human Services
    have been fulfilled, and here, we have answered that question
    in the affirmative. Having thus concluded, we need not delve
    into any distinction between methods and techniques.
    Opportunity for Independent Chemical
    Test/A dmissibility Under § 60-6,199
    Next, Jasa claims that the district court erred when it found
    that the officers had not violated his statutory right to an inde-
    pendent blood test pursuant to § 60-6,199. Section 60-6,199
    provides:
    The peace officer who requires a chemical blood,
    breath, or urine test or tests pursuant to section 60-6,197
    may direct whether the test or tests shall be of blood,
    breath, or urine. The person tested shall be permitted to
    have a physician of his or her choice evaluate his or her
    condition and perform or have performed whatever labo-
    ratory tests he or she deems appropriate in addition to and
    following the test or tests administered at the direction of
    the officer. If the officer refuses to permit such additional
    test to be taken, then the original test or tests shall not be
    competent as evidence. Upon the request of the person
    tested, the results of the test or tests taken at the direction
    of the officer shall be made available to him or her.
    In State v. Dake, 
    247 Neb. 579
    , 
    529 N.W.2d 46
    (1995),
    we applied the language of § 60-6,199, then codified as Neb.
    Rev. Stat. § 39-669.09 (Cum. Supp. 1992). We found that an
    officer had no statutory duty to transport an in-custody defend­
    ant to the hospital for an independent blood test. In Dake, we
    also endorsed the view that while “the police cannot hamper
    a motorist’s efforts to obtain independent testing, they are
    under no duty to assist in obtaining such testing beyond allow-
    ing telephone calls to secure the 
    test.” 247 Neb. at 584
    , 529
    N.W.2d at 49.
    Here, Jasa requested the opportunity to undergo an inde-
    pendent blood test, and Morrow informed him that jail staff
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    would allow him access to the telephone to make the necessary
    arrangements. Jasa’s access to the telephone began at approxi-
    mately 2 a.m., shortly after officers administered the chemical
    breath test, but, despite making 45 telephone calls, he did not
    try to contact a hospital or physician. Instead, he attempted,
    unsuccessfully, to make arrangements for bond.
    On the morning of the suppression hearing, Jasa called hos-
    pitals and other entities to inquire about a blood test. Jasa tes-
    tified that he learned that no entity he contacted comes to the
    jail to conduct independent blood tests. Notably, Jasa did not
    identify any of the individuals who fielded his calls, nor, as the
    State points out, does this evidence categorically establish that
    Jasa could not have been tested at the jail. It merely shows that
    Jasa’s “best efforts” on the morning of the suppression hearing
    were fruitless.
    In the instant case, Jasa was provided telephone access, but,
    whether through misunderstanding or calculated choice, he did
    not use it to arrange for timely independent testing. Even if
    confusion about bond influenced Jasa’s failure to arrange for
    a timely independent blood test, any such misfortune did not
    arise due to the fault of law enforcement, who advised him that
    he would remain in jail until his court date and that he would
    have to arrange for someone to administer a blood test at the
    jail. See People v. Kirkland, 
    157 Misc. 2d 38
    , 
    595 N.Y.S.2d 905
    (1993) (if driver cannot obtain test, through no fault of
    police, it is generally considered driver’s misfortune). Instead,
    the officers in this case fulfilled the requirements of § 60-6,199
    as applied in Dake: They did not hamper Jasa’s ability to
    obtain an independent test, and they assisted him by allowing
    him to make telephone calls to secure it.
    Despite Jasa’s failure to attempt to arrange for a timely
    independent test, he argues that our holding in State v. 
    Dake, supra
    , is distinguishable from his situation because he later
    attempted to contact hospitals and other entities about an
    independent blood test and none of them performed such tests
    at the jail. He also claims Dake is distinguishable because he
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    could not bond out for 3 days, whereas the defendant in Dake
    bonded out within a few hours. Under the circumstances in this
    case, Jasa believes that the intent of § 60-6,199 is defeated if
    the officers are not required to do more than provide access to
    a telephone.
    Jasa relies on cases from other jurisdictions. He cites
    Hedges, 
    143 Idaho 884
    , 
    154 P.3d 1074
    (Idaho App. 2007). But
    in Hedges, an Idaho court held that “the police . . . have a duty
    not to interfere with or affirmatively deny a defendant access
    to a telephone once a request has been made to make tele-
    phonic arrangements for an independent [blood alcohol content
    (BAC)] test,” but “no duty to administer a second BAC test or
    otherwise participate in arranging an independent BAC test on
    behalf of the defendant” and no duty to “transport a defendant
    to a medical facility to obtain an independent BAC 
    test.” 143 Idaho at 888
    , 154 P.3d at 1078.
    Jasa also points to Unruh v. State, 
    669 So. 2d 242
    , 243-44
    (Fla. 1996), where the Supreme Court of Florida found:
    [L]aw enforcement must render reasonable assistance
    in helping a DUI arrestee obtain an independent blood
    test upon request. In some cases, minimal aid such as
    providing access to a telephone and directory will be
    sufficient; in others, more active assistance such as
    transporting the arrestee to a blood testing facility will
    be necessary.
    However, unexplained by Jasa, is what would constitute rea-
    sonable assistance if we adopted the holding in Unruh v.
    
    State, supra
    . For example, does the officer need to assist an
    extremely intoxicated person who cannot even conduct a tele-
    phone call, does the officer order medical personnel to conduct
    an independent test if they refuse, and who is liable for the
    costs or if an injury occurs? Adopting any standard beyond
    allowing a defendant to make his or her own arrangements
    would add requirements to § 60-6,199 which are not present
    and would lead to confusion for law enforcement and medical
    personnel and inconsistencies in applying the law. See State
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    v. Rodriguez, 
    288 Neb. 714
    , 
    850 N.W.2d 788
    (2014) (it is not
    within appellate court’s province to read meaning into statute
    that is not there).
    [9,10] In this instance, even if we ignored Jasa’s failure to
    timely attempt to arrange for an independent test, it would
    not obviate the fact that the principle of State v. Dake, 
    247 Neb. 579
    , 
    529 N.W.2d 46
    (1995), comports with § 60-6,199.
    Statutory language is to be given its plain and ordinary mean-
    ing. State v. Arizola, 
    295 Neb. 477
    , 
    890 N.W.2d 770
    (2017).
    And we will not look beyond a statute to determine the legisla-
    tive intent when the words are plain, direct, or unambiguous.
    State v. Wood, 
    296 Neb. 738
    , 
    895 N.W.2d 701
    (2017). Clearly,
    § 60-6,199 allows any “person tested . . . to have a physician
    . . . evaluate his or her condition and perform or have per-
    formed whatever laboratory tests he or she deems appropri-
    ate.” But the officer must “refuse[] to permit”—that is, deny
    authorization or consent for—such additional test to trigger
    the suppression of any officer-directed test. Since our holding
    in Dake over two decades ago, our Legislature has not revis-
    ited the language in § 60-6,199. The principle that “the police
    cannot hamper a motorist’s efforts to obtain independent test-
    ing” and “are under no duty to assist in obtaining such testing
    beyond allowing telephone calls to secure the test” is still a
    reasonable statement of the law. State v. Dake, 247 Neb. at
    
    584, 529 N.W.2d at 49
    . Accordingly, the district court did not
    err in finding no violation of the statutory rights afforded to
    Jasa by § 60-6,199.
    [11] Jasa further claims a violation of his due process rights
    because he was denied the opportunity to obtain exculpatory
    evidence through an independent blood test. However, he did
    not raise this issue before the district court, and in appellate
    proceedings, the examination by the appellate court is con-
    fined to questions which have been determined by the trial
    court. State v. Dean, 
    270 Neb. 972
    , 
    708 N.W.2d 640
    (2006).
    Therefore, we will not consider this issue on appeal.
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    Sufficiency of Evidence
    Jasa argues that if we conclude that the district court erred
    in denying his motion to suppress, the evidence at trial was
    insufficient to support his conviction for the crime charged.
    However, having found that the district court did not err in
    denying the motion to suppress, we need not consider this
    assignment of error. State v. Bol, 
    288 Neb. 144
    , 
    846 N.W.2d 241
    (2014) (appellate court is not obligated to engage in analy-
    sis that is not necessary to adjudicate case and controversy
    before it).
    CONCLUSION
    For the reasons set forth above, we affirm.
    A ffirmed.