State v. Quezada , 20 Neb. Ct. App. 836 ( 2013 )

Decisions of the Nebraska Court of Appeals
836 20 NEBRASKA APPELLATE REPORTS
State of Nebraska, appellee, v.
Filiberto Quezada, appellant.
___ N.W.2d ___
Filed June 4, 2013. No. A-12-581.
1. Trial: Expert Witnesses. The right of an indigent defendant to the appointment
of an expert witness at State expense generally rests in the discretion of the
trial court.
2. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective
assistance of counsel raised for the first time on direct appeal do not require
dismissal ipso facto; the determining factor is whether the record is sufficient to
adequately review the question. When the issue has not been raised or ruled on at
the trial court level and the matter necessitates an evidentiary hearing, an appel-
late court will not address the matter on direct appeal.
3. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
4. Drunk Driving: Blood, Breath, and Urine Tests: Proof: Expert Witnesses:
Rebuttal Evidence. A test made in compliance with the statutory scheme, and its
corresponding regulations, is sufficient to make a prima facie case on the issue
of breath alcohol concentration. That scheme does not require evidence as to any
margin of error for the testing device. And the trial court is not required to accept
as credible any expert testimony called by the defendant to rebut the State’s
prima facie case.
5. Drunk Driving: Blood, Breath, and Urine Tests: Proof. Neb. Rev. Stat.
§ 60-6,201 (Reissue 2010) requires that a chemical test be performed in accord­
ance with the procedures approved by the Department of Health and Human
Services Regulation and Licensure and by an individual possessing a valid permit
issued by that department for such purpose. There are four foundational elements
the State must establish for admissibility of a breath test in a prosecution for
driving under the influence: (1) that the testing device was working properly
at the time of the testing, (2) that the person administering the test was quali-
fied and held a valid permit, (3) that the test was properly conducted under the
methods stated by the Department of Health and Human Services Regulation and
Licensure, and (4) that all other statutes were satisfied. A breath test that com-
ports with the foregoing listed requirements makes a prima facie case.
6. Expert Witnesses. If proposed expert testimony is fundamentally flawed by
the expert’s own admission, it is not an abuse of discretion for the trial court to
refuse to appoint the expert under Neb. Rev. Stat. § 27-706 (Reissue 2008) when
there is no showing that this shortcoming in the expert’s proposed testimony has
been remedied.
7. Expert Witnesses: Evidence: Affidavits. A defendant must provide evidence
to support a motion to appoint an expert witness, and this evidence may consist
of affidavits.
8. Effectiveness of Counsel: Drunk Driving: Expert Witnesses. In order to
ensure that the right to effective assistance of counsel does not become a hol-
low right, it is the duty of the State not only to provide an indigent defendant
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with an attorney, but also to provide the lawyer with the appropriate tools and
services necessary to provide a proper, competent, and complete defense. An
indigent defendant being prosecuted for driving while under the influence may,
in certain circumstances, be entitled to the appointment of an expert witness at
the State’s expense.
9. Expert Witnesses. An expert need not be supplied every time a request is made
by an indigent defendant, nor must the court provide defense counsel with equip-
ment for a “fishing expedition.” There must be some showing by defense counsel
that the expert is necessary for an adequate defense.
10. ____. There must be some threshold showing of necessity for expert assistance
before a trial court may grant a defendant’s request therefor, such as why the
requested expert testimony was necessary, how such testimony would likely
benefit the defense, or why a vigorous cross-examination of the State’s witnesses
would not achieve the same result.
11. Effectiveness of Counsel: Witnesses. When the record shows that the State’s
witnesses were thoroughly cross-examined consistent with the defense theory,
there was meaningful adversarial testing of the prosecution’s case.
12. Constitutional Law: Effectiveness of Counsel: Proof. The U.S. Supreme Court
has uniformly found constitutional error without any showing of prejudice when
counsel was either totally absent or prevented from assisting the accused during
a critical stage of the proceeding. Apart from circumstances of that magnitude,
however, there is generally no basis for finding a Sixth Amendment violation
unless the accused can show how specific errors of counsel undermined the reli-
ability of the finding of guilt.
Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Affirmed.
Sarah M. Mooney, of Mooney Law Office, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Sievers, Pirtle, and Riedmann, Judges.
Sievers, Judge.
INTRODUCTION
Filiberto Quezada appeals from his conviction and sentence
for third-offense aggravated driving under the influence (DUI),
a Class IIIA felony due to his .174 breath alcohol content, in
violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010). He
claims that the district court erred in denying his motion to
hire an expert witness at public expense to testify to the mar-
gin of error inherent in the DataMaster breath testing device
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which formed the basis of his conviction. Based on the analysis
below, we affirm the conviction.
FACTUAL BACKGROUND
Roger Ites testified that on August 2, 2011, at approxi-
mately 10 p.m., he was driving his motorcycle eastbound
on Q Street in Omaha, Nebraska, when he noticed a vehicle
backing out onto Q Street approximately half a block in front
of him that did not have its lights on. In an effort to avoid the
vehicle, Ites moved from the right-hand lane to the left-hand
lane. The driver of the vehicle suddenly attempted to make
a U-turn to drive west on Q Street. Ites braked heavily but
struck the vehicle with the front end of his motorcycle, laying
the bike down. Ites called the 911 emergency dispatch service,
and both he and the driver of the vehicle waited at the acci-
dent scene.
Two Omaha police officers came to the accident scene, and,
upon contact with Quezada, the driver of the vehicle, they
smelled a strong odor of alcohol on Quezada’s breath and
noticed his eyes were bloodshot. Based on those observations,
one of the officers called for a traffic officer to process the
possible DUI.
Officer Nicholas Prescott came to the scene to investigate the
possible DUI. Prescott detected that Quezada had a strong odor
of alcohol and glassy, bloodshot eyes. Prescott had Quezada
perform field sobriety tests; Prescott testified that Quezada
showed impairment on the tests. Prescott waited the required
15 minutes before conducting a preliminary breath test, which
Quezada failed. Prescott placed Quezada under arrest for suspi-
cion of DUI and transported Quezada to the main police station
for an evidentiary breath test. After waiting the requisite 15
minutes, Prescott had a crime laboratory technician administer
the DataMaster test, which produced a result of .174 of one
gram of alcohol per 210 liters of breath, hereinafter generally
referred to as “breath alcohol content.” We will generally refer
to the breath test result as “BTR.”
James Brady, a senior crime laboratory technician with the
Omaha Police Department, testified that he has been respon-
sible for maintenance on DataMasters and Intoxilyzers since
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1995. Brady testified as to the process that the DataMaster
uses to test an individual’s breath, and as to his responsibilities
as the maintenance officer, such as checking the calibration
of the instruments under the Nebraska Administrative Code’s
title 177, which maintenance he must do every 40 days. Brady
testified that the machine used to test Quezada had been timely
and properly checked for calibration before its use. Brady testi-
fied as to exhibits 8 and 11, copies of the “Chemical Analysis
Certification of Alcohol Breath Simulator Solution,” which
certifications are used per title 177 to verify that the calibration
solutions test within tolerance at .08 and .15. Brady also testi-
fied as to exhibit 10, a copy of the “Scheduled Maintenance
and Calibration Log” for the DataMaster, which showed that
he performed the last required 40-day check on July 3, 2011.
During the July 3 check, the .08 solution tested at .081, which
is off by .001 and within the acceptable margin of error
according to title 177. However, we note that in his role as
the maintenance officer for the DataMaster, Brady said that
he “personally” uses a 5-percent margin of error, meaning
anywhere between .076 and .084, which is a “tighter” margin
of error than that required for calibration solutions by title
177, which is plus or minus .01. Brady testified that the .15
solution tested at .154, which is also within the acceptable
margin of error, both Brady’s “personal” margin of error and
that allowed by title 177. Brady testified that the results of his
July 3 check were valid for 40 days, until August 12. Based
upon his training and experience in the crime laboratory and
as DataMaster maintenance officer and the above-detailed test
results, Brady concluded and testified that the DataMaster,
when used to test Quezada’s breath, was in proper working and
operational condition.
A technician employed with the Omaha Police Department’s
crime laboratory testified that on August 2, 2011, she con-
ducted a breath test for Prescott on Quezada. Prior to conduct-
ing the test, she determined that the maintenance and calibra-
tion checks had been performed on the DataMaster and that it
was in proper working order. She testified that she followed all
of the required procedures from title 177 and that Quezada’s
breath alcohol content was .174.
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PROCEDURAL BACKGROUND
The information was filed against Quezada on August 8,
2011. On February 10, 2012, Quezada filed a motion for
appointment of an expert witness. On March 27, the trial court
entered an order denying Quezada’s motion to appoint an
expert witness. The case was tried to a jury on March 26 and
27. On March 27, the jury returned a verdict finding Quezada
guilty of the charge of DUI, and the trial court accepted the
jury’s verdict. On June 11, Quezada was sentenced to 2 to 2
years’ imprisonment, his license was revoked for 15 years, and
he was ordered to pay a fine of $10,000. Quezada filed a notice
of appeal to this court on June 28.
ASSIGNMENTS OF ERROR
Quezada assigns the following errors: (1) The trial court
abused its discretion when it refused to appoint an expert wit-
ness, (2) Quezada was denied effective assistance of counsel,
and (3) the trial court abused its discretion when it imposed an
excessive sentence.
STANDARD OF REVIEW
[1] The right of an indigent defendant to the appointment
of an expert witness at State expense generally rests in the
discretion of the trial court. State v. Grimes, 246 Neb. 473,
519 N.W.2d 507 (1994), overruled on other grounds, State v.
Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
[2] Claims of ineffective assistance of counsel raised for the
first time on direct appeal do not require dismissal ipso facto;
the determining factor is whether the record is sufficient to
adequately review the question. State v. Jones, 274 Neb. 271,
739 N.W.2d 193 (2007). When the issue has not been raised
or ruled on at the trial court level and the matter necessitates
an evidentiary hearing, an appellate court will not address the
matter on direct appeal. Id.
[3] A sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the
trial court. State v. Losinger, 268 Neb. 660, 686 N.W.2d
582 (2004).
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ANALYSIS
Denial of Appointment of Expert Witness
Regarding Accuracy of DataMaster.
Quezada argues that the trial court erred in failing to
appoint an expert witness who could testify that due to
the unreliability of the DataMaster machine and its margin
of error, Quezada’s breath alcohol content may not have
been at .15 or over when Quezada was driving the vehicle.
Because Quezada was allegedly indigent and could not afford
to hire an expert witness, counsel filed a motion to appoint an
expert witness pursuant to Neb. Rev. Stat. § 27-706 (Reissue
2008), which allows the court to appoint an expert witness
who operates under the written instructions of the court and
may testify. This statute specifically provides that the court
may inform the jury that the expert is court appointed, but
when this statute is used, the parties may still call their own
expert witnesses.
In his motion filed on February 10, 2012, Quezada stated that
he was “currently represented by retained counsel but [was]
financially unable to afford necessary supporting services.” In
his affidavit in support of the motion, Quezada stated that he
paid his attorney by creating a concrete patio at his counsel’s
home. In support of the motion for appointment of the expert,
counsel for Quezada argued that the situation regarding his
being retained counsel by way of a “barter arrangement” was
simply analogous to a pro bono attorney asking the court to
pay deposition fees or other litigation expenses for an indigent
defendant. At this hearing on the motion, counsel for the State
argued that the State was not bringing in an expert witness,
such as a toxicologist, but, rather, that Brady was simply a
DataMaster maintenance officer. When the trial court judge
asked the State whether it was bringing in someone to say
what Quezada would have tested at the time of his driving, the
State responded in the negative, saying: “There’s no expert or
extra evidence that’s being brought by the State in this case.
The test we’re talking about, .174, is well within the margin
for error in Title 177 and in the maintenance records that
you’ll see.” The following exchange took place:
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THE COURT: . . . I’m assuming one of the arguments
of the defense is that’s what he tested when he was tested,
but the question to the jury would be what would he have
tested when he was driving. And you’re not bringing in
the expert to establish that information?
[Counsel for the State]: I am not, Your Honor.
The court’s order simply states that “[Quezada’s] motion to
appoint an expert witness is hereby denied,” but does not pro-
vide any rationale.
Quezada’s defense which he wanted to advance at trial
was that the BTR of .174 alleged by the State was subject to
a margin of error due to the unreliability of the DataMaster
and that therefore the State could not prove that Quezada’s
breath alcohol content was at or above .15 when he was oper-
ating the vehicle, preventing him from being convicted of
felony aggravated DUI. Quezada wanted Dr. John Vasiliades,
a forensic toxicologist, to testify that the DataMaster has a
margin of error of “.03” and that absorption and excretion
rates of alcohol may have affected Quezada’s BTR. We note
that Vasiliades has provided similar testimony in several other
DUI cases. See, State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389
(2008) (Vasiliades testified that his opinion within reasonable
degree of scientific certainty was that margin of error for
DataMaster was plus or minus .03 of a gram); State v. Baue,
258 Neb. 968, 607 N.W.2d 191 (2000) (Vasiliades testified
that Intoxilyzer Model 4011AS has inherent analytical error
of plus or minus .03 of a gram, so that reading of .11 could
be as low as .08 or as high as .14). We assume Vasiliades’
testimony, if allowed in this case, would have been similar,
and we note that defense counsel represented such in his
affidavit in support of the motion, although counsel did not
specify that the .03 was “grams” but we assume it would have
been .03 of a gram, given Vasiliades’ testimony in the other
reported cases.
In the motion for appointment of an expert witness, counsel
for Quezada stated that Quezada was represented by retained
counsel but was financially unable to afford necessary sup-
porting services. Quezada’s financial affidavit shows that he
would be considered indigent, despite having “bartered” for his
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retained counsel’s services, and we operate on the premise that
at the time of the motion under discussion, Quezada would be
considered indigent.
[4,5] Thus, the issue is simply whether the trial court abused
its discretion in denying the § 27-706 motion to have Vasiliades
as a court-appointed expert under that statute, given Quezada’s
indigent status. We turn to State v. Kuhl, 276 Neb. at 510, 755
N.W.2d at 399, where the court said:
It is a longstanding principle that a test made in compli-
ance with the statutory scheme, and its corresponding
regulations, is sufficient to make a prima facie case on the
issue of blood alcohol concentration. That scheme does
not require evidence as to any margin of error for the test-
ing device. And the trial court is not required to accept as
credible any expert testimony called by the defendant to
rebut the State’s prima facie case.
Currently, § 60-6,201 requires that a chemical test be
performed in accordance with the procedures approved by
the Department of Health and Human Services Regulation
and Licensure and by an individual possessing a valid
permit issued by that department for such purpose. We
have explained that there are four foundational elements
the State must establish for admissibility of a breath test
in a DUI prosecution: (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 Regulation and Licensure, and (4)
that all other statutes were satisfied.
The Kuhl court makes it clear that a breath test which com-
ports with the foregoing listed requirements makes a prima
facie case. Thus, a prima facie case of DUI over .15 was made
against Quezada because the requirements for such test as set
forth in Kuhl were satisfied by the State’s evidence, and no
claim is advanced here by Quezada that the Kuhl requirements
for a prima facie case were not satisfied. And, we note that
there was no objection to exhibit 14, the result of Quezada’s
breath test.
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Quezada wanted to rebut the prima facie case by having
the court appoint an expert, Vasiliades, to testify that the
DataMaster’s reading of a suspect’s breath has a .03-gram
margin of error—which on the low side would put Quezada
under .15 at .144 if believed by the jury. But, State v. Kuhl,
276 Neb. 497, 755 N.W.2d 389 (2008), also makes it clear that
the fact finder is not required to accept as credible any expert
testimony called by the defendant to rebut the State’s prima
facie case.
[6] However, the court in Kuhl points out a fundamental
flaw that existed in Vasiliades’ testimony, which was his own
admission that “he knew of no studies that specifically related
to the DataMaster used to test [the defendant] and that such a
particularized study would be necessary to accurately access
the machine’s margin of error.” 276 Neb. at 510-11, 755
N.W.2d at 399-400. If proposed expert testimony is fundamen-
tally flawed by the expert’s own admission, it is not an abuse
of discretion for the trial court to refuse to appoint the expert
under § 27-706 when there is no showing that this shortcoming
in the expert’s proposed testimony has been remedied. The affi-
davit made by counsel in the case before us about Vasiliades’
proposed testimony did not make any showing that this fun-
damental shortcoming in Vasiliades’ opinion of the margin of
error that he thinks is present in the DataMaster machine’s
reading of the suspect’s breath had been remedied. Without
any showing that this shortcoming had been remedied, we can-
not say that the trial court abused its discretion in refusing to
appoint Vasiliades under § 27-706.
[7-10] In State v. Turco, 6 Neb. Ct. App. 725, 576 N.W.2d 847
(1998), we cited to State v. White, 244 Neb. 577, 508 N.W.2d
554 (1993), postconviction relief granted, 249 Neb. 381, 543
N.W.2d 725 (1996), overruled on other grounds, State v.
Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). In White, the
Nebraska Supreme Court held that a defendant must provide
evidence to support the motion to appoint an expert witness
and that this evidence may consist of affidavits. In Turco,
we concluded that the trial court’s denial of the defendant’s
motion to hire an expert witness to testify regarding the accu-
racy of breath testing equipment used and the result obtained
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was not an abuse of discretion. In reaching this conclusion,
we stated:
In order to ensure that the right to effective assistance
of counsel does not become a hollow right, it is the duty
of the State not only to provide an indigent defendant
with an attorney, but also to provide the lawyer with
the appropriate tools and services necessary to provide
a proper, competent, and complete defense. . . . Thus, it
appears that an indigent defendant being prosecuted for
[DUI] may, in certain circumstances, be entitled to the
appointment of an expert witness at the State’s expense.
However, an expert need not be supplied every time
a request is made by an indigent defendant, nor must
the court provide defense counsel with equipment for a
“fishing expedition.” . . . There must be some showing
by defense counsel that the expert is necessary for an
adequate defense. [In] State v. White, 244 Neb. 577, 508
N.W.2d 554 (1993) . . . , the Nebraska Supreme Court
held that although there may be circumstances under
which a district court’s denial of a defendant’s request for
funds to hire an expert would be an abuse of discretion,
under the circumstances of that case, where no evidence
to support the motion was offered, the district court did
not abuse its discretion.
6 Neb. Ct. App. at 730-31, 576 N.W.2d at 852 (citations omitted).
Thus, we concluded:
Stated simply, defense counsel gave no indication as
to why the requested expert testimony was necessary or
how such testimony would likely benefit the defense, or
as to why a vigorous cross-examination of the State’s
witnesses would not achieve the same result. There
must be some threshold showing of necessity for expert
assistance before a trial court may grant a defendant’s
request therefor.
In sum, while we conclude that there may be circum-
stances under which the denial of funds for an expert
witness would be an abuse of discretion, we conclude that
under the circumstances of this case, where no evidence
to support the motion was offered, the county court did
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not abuse its discretion in denying the motion to hire an
expert witness, and the district court’s reversal thereof
was error.
Id. at 732, 576 N.W.2d at 852-53.
In the case at hand, while defense counsel did provide an
affidavit of Vasiliades’ proposed testimony, that affidavit did
not reveal that the shortcoming in his testimony as pointed out
in State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008), had
been addressed or cured. Thus, there could not be any benefit
to Quezada, given that the testimony, at least insofar as rep-
resented by Quezada’s counsel’s affidavit, would be plainly
inadmissible, given the witness’ obvious lack of foundation to
opine on a margin of error inherent in the reading of Quezada’s
breath by the DataMaster, despite the other undisputed evi-
dence showing its proper calibration and functioning of the
machine under title 177. Therefore, this assignment of error is
without merit.
Ineffective Assistance of Counsel.
Quezada also argues that trial counsel was ineffective for a
number of reasons: (1) Counsel did not request that voir dire
examination be placed on the record, (2) counsel did not object
during the 2-day jury trial, and (3) counsel did not move for a
mistrial or for a new trial based on the trial court’s denial of
his motion for appointment of an expert witness after the State
presented Brady’s testimony concerning the validity of the
DataMaster machine.
Quezada first argues that trial counsel neglected to request
that voir dire examination be on the record. Because there is
no record of what occurred, any possible appealable issues
or prejudicial statements were not preserved. The record is
insufficient for us to determine whether Quezada’s counsel’s
performance during voir dire was deficient or whether any such
deficient performance prejudiced his defense.
[11,12] Second, Quezada argues that trial counsel neglected
to object during the trial. In State v. Davlin, 265 Neb. 386,
658 N.W.2d 1 (2003), the defendant argued that he was denied
effective assistance of counsel by his trial counsel’s failure
to subject the prosecution’s case to meaningful adversarial
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testing. When the record shows that the State’s witnesses were
thoroughly cross-examined consistent with the defense theory,
there was meaningful adversarial testing of the prosecution’s
case. In United States v. Cronic, 466 U.S. 648, 659, 104 S.
Ct. 2039, 80 L. Ed. 2d 657 (1984), the U.S. Supreme Court
explained that where “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing, then there
has been a denial of Sixth Amendment rights that makes the
adversary process itself presumptively unreliable.” The Court
also noted:
The Court has uniformly found constitutional error
without any showing of prejudice when counsel was either
totally absent, or prevented from assisting the accused
during a critical stage of the proceeding. . . .
Apart from circumstances of that magnitude, how-
ever, there is generally no basis for finding a Sixth
Amendment violation unless the accused can show how
specific errors of counsel undermined the reliability of the
finding of guilt.
United States v. Cronic, 466 U.S. at 659 n.25, 26.
This holding applies to the case at hand. Quezada argues
that he was denied effective assistance of counsel in counsel’s
failure to make any objections during the trial. However, the
record shows that each of the State’s witnesses was thoroughly
cross-examined consistent with the defense theory regarding
the margin of error for the DataMaster test and that Quezada’s
actual breath alcohol content was unknown at the moment he
was driving immediately before the accident. Therefore, there
was meaningful testing of the prosecution’s case. Quezada
identifies numerous instances in which an objection may have
been appropriate during trial, but he is unable to show actual
prejudice where the result of the DataMaster test was .174,
remembering that no objection was made to the admission
of the BTR, exhibit 14. Even if it may have been proper for
Quezada’s counsel to object in specific instances, which we do
not address, Quezada must show that counsel’s deficient per-
formance resulted in prejudice and how specific errors of coun-
sel undermined the reliability of the finding of guilt. Quezada
has failed to meet this burden.
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Third, Quezada argues that trial counsel neglected to move
for a mistrial or for a new trial based on the trial court’s
denial of his motion for appointment of an expert witness after
the State presented Brady’s testimony. Quezada claims that
the State specifically stated at the hearing on the motion for
appointment of an expert witness that it would not be present-
ing expert witness testimony. However, the agreement was
that the State would not bring in an expert to opine as to what
Quezada’s breath alcohol content would have been at the time
of the accident. The court allowed Brady to testify as to the
maintenance of the DataMaster machine and the way in which
the DataMaster machine operates according to title 177, and
such testimony was not a violation of the representations made
by the State as to what sort of expert it would or would not call
to testify.
Quezada argues that trial counsel should have objected to
Brady’s testimony and moved for a mistrial and that counsel
should have renewed his motion to appoint an expert when
the State put on Brady’s testimony. Quezada claims that trial
counsel’s failure to object and exclude the improper testimony,
to object and move for a mistrial, or to object and renew the
motion for appointment of an expert left Quezada with no
expert testimony to counter the DataMaster evidence and the
expert opinion given by the State’s witness. However, it is
clear that Vasiliades’ testimony did not go to the accuracy of
Brady’s calibration testing, but, rather, to a margin of error
inherent in the DataMaster’s test result of a suspect’s breath.
Thus, nothing testified to by Brady would have bolstered
Quezada’s argument to have Vasiliades testify or given the
trial judge cause to grant a renewed motion that had been
earlier denied. In this regard, it must be remembered that
Brady did not present evidence as to the margin of error of the
DataMaster machine when it produces a reading of the alco-
hol content of a suspect’s breath. Rather, Brady testified only
as to the margin of error in the calibration solutions and the
margin of error for the internal standard, which is an entirely
different matter. Further, Brady’s testimony was not improper,
because it was not expert testimony as to Quezada’s breath
alcohol content at the time he was driving and was also not
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expert testimony from an undisclosed expert. Thus, Brady’s
testimony was permissible and did not include any evidence
about whether the BTR reading from a DataMaster has an
inherent margin of error when testing an unknown sample
such as Quezada’s breath. Rather, Brady’s testimony addressed
only the permissible margin of error when the DataMaster is
checked for proper calibration by the use of known solutions.
Therefore, it would not have been proper to exclude his tes-
timony. And, as we found above, the court did not abuse its
discretion in overruling the motion prior to trial, because there
was no showing that Vasiliades’ proposed testimony was no
longer subject to the shortcoming pointed out in State v. Kuhl,
276 Neb. 497, 755 N.W.2d 389 (2008). Thus, on this record,
we cannot find any deficient performance of trial counsel that
was prejudicial to Quezada.
Excessive Sentence.
Quezada’s last argument is that the trial court’s sentence of
2 to 2 years’ imprisonment, a 15-year license revocation, and
a $10,000 fine was excessive. Quezada argues that he had a
very minimal criminal record, he has three children, and he
has enrolled in outpatient treatment and had openly discussed
his alcoholism with the probation officer. However, as the trial
court judge noted at the sentencing hearing, this was Quezada’s
fifth DUI and Quezada is a “dangerous guy” because he con-
tinued to drive drunk without insurance. We cannot say that
Quezada’s sentence, for which he will be eligible for parole in
294 days from the sentencing date, is excessive and an abuse of
the trial court’s discretion. Thus, the third assignment of error
is without merit.
CONCLUSION
For the reasons discussed, we conclude that the district court
did not abuse its discretion in denying Quezada’s motion to
appoint an expert witness at public expense or in sentencing
Quezada. We also find that Quezada’s ineffective assistance of
counsel argument is without merit. We affirm the conviction
and sentence.
Affirmed.