State v. Rush ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE V. RUSH
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.
CLIFFORD L. RUSH, APPELLANT.
Filed October 1, 2013. No. A-13-045.
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge.
Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and John Jorgensen for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
MOORE, PIRTLE, and BISHOP, Judges.
MOORE, Judge.
INTRODUCTION
Clifford L. Rush appeals from his conviction following a jury trial in the district court for
Lancaster County of driving under the influence (DUI), third offense, with refusal to submit to a
chemical test and driving during revocation. Rush challenges the denial of his motions to
suppress evidence obtained following the stop of the vehicle he was driving and the statements
he made following the stop. He also asserts that the district court failed to make sufficient
findings of fact in denying his motions to suppress and erred in admitting evidence regarding his
failure to submit to a breath test. Finally, Rush argues that there was insufficient evidence to
show he was under the influence of alcohol at the time of the stop and that the sentences imposed
upon him were excessive. Finding no merit to Rush’s assignments of error, we affirm.
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BACKGROUND
Information.
On April 26, 2012, the State filed an information charging Rush with DUI, third offense,
with refusal to submit to a chemical test in violation of Neb. Rev. Stat. §§ 60-6,196 (Reissue
2010) and 60-6,197.03(6) (Cum. Supp. 2012), a Class IIIA felony, and driving during revocation
in violation of Neb. Rev. Stat. § 60-4,108(1)(a) (Reissue 2010), a Class II misdemeanor.
Motion to Suppress.
Rush filed motions to suppress and a motion requesting a hearing pursuant to Jackson v.
Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The district court heard Rush’s
motions on June 25, 2012.
The evidence at the hearing shows that police officers John Kossow and Justin Roach
were on patrol in their cruiser on March 10, 2012, when, at about 10:55 p.m., they ran a routine
license plate check of a van driving in front of them. Upon running the plate check on their
mobile data terminal, the officers learned that the registered owner of the van, Timothy Rush,
had a 15-year license suspension. The information on the terminal included both a Department of
Motor Vehicles photograph of Timothy and a booking photograph from prior police contacts.
Kossow testified that the officers pulled up next to the van on the driver’s side. Kossow had had
prior contact with Timothy, and upon comparing the photographs displayed on the terminal with
the face of the person driving the van, the photographs appeared to be of the same person.
Although the lighting was not perfect, Kossow felt it was sufficient that he was able to get a look
at the driver, whom he thought was Timothy.
When the stoplight changed, the officers began to follow the van, and Kossow activated
the cruiser’s overhead lights. Because the van continued without stopping, Kossow started
“hitting the siren.” The officers continued to follow the van until it pulled into a gas station. It
did not appear that the van pulled over in response to the lights and siren, but instead appeared to
have pulled up to the gas pumps. The driver got out of the van and did not acknowledge the
officers’ presence until Kossow spoke to him and directed him to get back in the van. Kossow
asked the driver why he did not stop, and as Kossow approached the driver, he detected a very
strong odor of alcohol. Kossow realized simultaneously that the driver was not Timothy and that
the driver was intoxicated. Kossow formed his belief that the driver was intoxicated based on his
observations of slurred speech, watery and bloodshot eyes, and extreme confusion. Upon
observing the driver more closely, Kossow realized that the driver was Rush, Timothy’s brother,
whom Kossow also knew from previous encounters. Kossow had dealt with both of them in the
past, and he testified they look enough alike that they could be mistaken for one another. Kossow
thought that Rush also did not have a driver’s license.
Kossow then asked Rush for his driver’s license, and Rush appeared confused and
extremely intoxicated. Eventually, Rush gave his name, and when the officers checked his
driver’s license status, they confirmed that his license was suspended as well. Kossow asked
Rush to perform some field sobriety tests, which he did, and Rush showed impairment on all of
them. Roach administered a preliminary breath test (PBT), which Rush failed as well. During
Kossow’s contact with Rush, he observed generally that Rush was very unsteady, had trouble
walking, and swayed as he stood. Kossow commented to Rush that it was obvious he had been
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drinking, and Rush said he had had “one.” Kossow told Rush that he knew he should not be
driving because he did not have a license and because he had been drinking, and Rush yelled
back that he knew he did not have a license. After the PBT, the officers placed Rush under arrest.
Kossow testified that he formed the opinion Rush was under the influence based on Rush’s
performance on the field sobriety tests, his general appearance, and the PBT, although Kossow
formed this opinion even before Rush took the PBT.
Roach also testified about the events on the evening of March 10, 2012. His testimony
was substantially similar to Kossow’s testimony, except that Roach indicated that the officers
initially pulled alongside the passenger side of the van. Roach indicated that the individual he
saw driving appeared to be Timothy, as the facial features of the driver very closely matched
those in the photographs of Timothy. According to Roach, the van continued moving after the
officers activated the cruiser’s overhead lights, almost like the driver was ignoring the police.
Roach stated that Kossow “tripped” the siren a few times too, but the van just kept going until it
stopped at the gas pump, at which point the officers initiated contact. While Kossow approached
the driver of the van, Roach contacted the passengers. Roach did not have contact with the driver
until Rush was placed in the back seat of the cruiser. Roach thereafter performed the PBT on
Rush.
Once Rush was arrested, the officers transported him to jail, took Rush to the testing
room, read him the postarrest chemical test advisement, and began the formal testing process.
Roach read the advisement to Rush, slid the advisement form over to Rush, asked him if he
understood it, and told him he had the right to read it himself. Roach also asked Rush if he had
any questions and told him he had to sign by the “X” if he understood what was read to him.
Rush became belligerent and out of control, refused to sign the form, and slid it back to Roach.
Roach then checked Rush’s mouth for foreign objects, began the 15-minute observation period,
and gave Rush the opportunity to take the breath test, which Rush refused. At some point, Rush
told Roach that he has asthma and pointedly told the officers that he was not going to take the
test since he had already taken the PBT. Although Kossow and Roach repeatedly explained to
Rush the reason for the two tests and told him this was the formal test, Rush called them several
names and said he would not take the test. According to Roach, Rush’s statements were not
made in response to questions from the officers. Roach testified that at the jail, neither officer
attempted to elicit information from Rush other than in response to demographic questions.
Following the State’s presentation of evidence, Rush’s attorney asked the court to
suppress Rush’s statements that he “only had one” and that he knew he should not be driving,
arguing that Rush was not free to leave the officer’s presence when those statements were made.
Rush apparently wanted his answers to the demographic questions at jail suppressed too because
he had been arrested but not given his Miranda warnings when those questions were asked. Rush
also asked the court to suppress the evidence from the stop because of the discrepancy between
Kossow’s and Roach’s testimony about which side of the van they pulled up to in order to
observe the driver and that the mistake in identity should result in suppression. Finally, Rush
argued that the refusal to submit to the breath test should be suppressed because a refusal is now
“part and parcel of an aggravated offense” and he was not advised of that, but was simply told
that refusal to submit to the test is a separate crime for which he could be charged.
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The district court took the matter under advisement and set a date for a ruling on the
motions to suppress and the Jackson v. Denno issues. See Jackson v. Denno, 378 U.S. 368, 84 S.
Ct. 1774, 12 L. Ed. 2d 908 (1964). On August 15, 2012, the court made its ruling and made
specific findings of fact and conclusions of law on the record. Rush’s attorney then asked the
court for a written order with more specific findings of fact, particularly in regard to the
statements made. The court ultimately agreed to prepare a written order and withdrew any
findings it had previously made pending issuance of the written order.
On September 20, 2012, the district court entered a written order denying all of Rush’s
motions to suppress. The court found that the officers reasonably believed Timothy was driving
the van on a suspended license and therefore lawfully stopped the van. The court found that even
though they were mistaken as to the identity of the driver, it was a reasonable mistake of fact
based on the officers’ observations of the driver and of Timothy’s photographs and the fact that
the van was registered to Timothy. The court found that upon contacting the driver, it was
immediately apparent to Kossow that Rush was extremely intoxicated. The court concluded there
was “probable cause” to stop the van and probable cause to arrest Rush, and accordingly, it
overruled the motion to suppress evidence.
The district court further found that the statements Rush made upon initial contact with
the police and prior to his arrest were freely, voluntarily, knowingly, and intelligently made. The
court found that Rush was not in custody when these statements were made and that they were
admissible. The court also overruled Rush’s motion to suppress most of his statements made
after he had been arrested. The court found that no Miranda warnings were given after Rush was
placed under arrest, and it concluded that, except as set forth further in the order, any statements
Rush made in response to questions by the officers should be suppressed. The court found that
Rush’s statements made that he was refusing to submit to a chemical test were admissible and
denied the motion to suppress as to statements made regarding Rush’s refusal to submit. The
court also found that any statements volunteered by Rush were admissible and overruled the
motion as to any volunteered statements, which included belligerent statements made by Rush
calling the officers names and a statement he made indicating that he “wanted to go to his cell
and pass out.” The court found that a review of all of Rush’s statements revealed that he had
knowledge and understanding of what was said and that his answers were responsive to the
officers’ questions. The court found that Rush’s statements were made without mental confusion,
were made with mental appreciation of what was being said, and were not the product of any
promises, threats, or coercion. Finally, with respect to the Jackson v. Denno issues, the court
found that all the statements Rush made on March 10, 2012, were freely, voluntarily, knowingly,
and intelligently made.
Trial Testimony.
A jury trial was held on November 13 and 14, 2012. The State called both Kossow and
Roach to testify, and their trial testimony was generally consistent with the testimony they
provided at the suppression hearing.
At trial, Kossow stated that he had been incorrect in testifying at the suppression hearing
that the cruiser pulled up to the driver’s side of the van, and he stated that the officers had, in
fact, pulled along the passenger side of the van. According to Kossow, he had not been certain of
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this detail, since it was not a detail he had included in his report, but after discussing it with
Roach after the suppression hearing and revisiting the area, he subsequently concluded that he
had been wrong in his suppression hearing testimony.
Kossow testified more extensively about the field sobriety tests he administered to Rush.
One of the tests Kossow administered was the horizontal gaze nystagmus test, and he explained
how that is done. Kossow stated that there are a total of six clues to look for, three in each eye,
those being lack of smooth pursuit, onset of nystagmus prior to 45 degrees, and nystagmus at
maximum deviation. Kossow observed all six clues when testing Rush. Kossow explained and
demonstrated the “one-leg stand” to Rush, and he observed indicators of impairment in that test.
Next, Kossow explained the “nine step walk-and-turn” test and again demonstrated it to Rush.
Rush showed numerous signs of impairment on that test as well. Finally, Kossow explained and
demonstrated the “Rhomberg balance test,” where the subject stands with his hands at his sides,
tips his head back a bit, closes his eyes, and estimates the passage of 30 seconds, and after
estimating 30 seconds, the subject is to open his eyes and let the officer know he has finished.
According to Kossow, Rush understood the instructions and agreed to this test. Kossow observed
that Rush swayed about while he stood in place and that his estimate of 30 seconds was actually
50 seconds. Based on his observations of Rush up to that point, including Rush’s performance on
the field sobriety tests, Kossow concluded that Rush was under the influence of alcohol.
Kossow again testified that Rush was argumentative during the whole process at the jail,
tried to get up and leave a couple of times, and said that he just “wanted to go to his cell and pass
out” and that he was not “blowing” any more. Kossow also stated that Rush tried to slap the tube
of the breath test machine out of Roach’s hands at least once.
Roach again testified that Rush became belligerent and uncooperative at the jail, refused
to take the formal chemical test, and said he just “wanted to go to his cell and pass out.” Roach
held the breathing tube for the machine up to Rush’s mouth for him to blow, and Rush slapped it
away, calling the officers names and again stating he would not take the test. Rush’s refusal to
take the test was noted on the checklist. Because Rush had become essentially unmanageable, the
officers then placed him in a cell.
After the State rested, Rush moved for a directed verdict, which was overruled by the
district court. Rush did not offer evidence. Following submission of the case, the jury returned
guilty verdicts on both charges. The court ordered a presentence investigation, which Rush
indicated that he would not cooperate with. The court set a date for enhancement and sentencing.
On December 17, 2012, an enhancement and sentencing hearing was held before the
district court. The State offered certified copies of Rush’s prior convictions, which the court
found sufficient to prove the instant offense was a third-offense DUI refusal, as charged in the
information. The court sentenced Rush to 4 to 5 years’ imprisonment for the DUI conviction,
revoked his license again for 15 years, and sentenced him to a concurrent term of 3 to 3 months’
imprisonment for driving on a revoked license, with a 1-year license revocation. Rush
subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Rush asserts that the district court erred in (1) admitting all evidence seized from him as a
result of the investigatory stop, because the stop was unsupported by a reasonable suspicion
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based on specific and articulable facts; (2) admitting statements made by him, because such
statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966); (3) failing to make sufficient findings of fact in its order denying his motions
to suppress; and (4) admitting evidence that he failed to submit to a breath test, because the
postarrest chemical test advisement form did not comply with Neb. Rev. Stat. § 60-6,197(5)
(Cum. Supp. 2012) and the policy position set forth in State v. Turner, 263 Neb. 896, 644
N.W.2d 147 (2002). Rush also asserts that the evidence was insufficient to sustain his conviction
for DUI, third offense, with refusal to submit to a chemical test, because a rational trier of fact
could not have found he was under the influence, and that the court erred by imposing excessive
sentences.
STANDARD OF REVIEW
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
historical facts, an appellate court reviews the trial court’s findings for clear error. State v.
Wiedeman, 286 Neb. 193, ___ N.W.2d ___ (2013). But whether those facts trigger or violate
Fourth Amendment protections is a question of law that an appellate court reviews independently
of the trial court’s determination. Id.In reviewing a motion to suppress a statement based on its claimed involuntariness,
including claims that law enforcement procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, supra, an appellate court applies a two-part standard
of review. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012). Regarding historical facts,
an appellate court reviews the trial court’s findings for clear error. Id. Whether those facts meet
constitutional standards, however, is a question of law, which an appellate court reviews
independently of the trial court’s determination. Id.In reviewing a sufficiency of the evidence claim, whether the evidence is direct,
circumstantial, or a combination thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. State v. Wiedeman, supra. The relevant question for an
appellate court is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Id.Sentences within statutory limits will be disturbed by an appellate court only if the
sentence complained of was an abuse of judicial discretion. State v. Ramirez, 285 Neb. 203, 825
N.W.2d 801 (2013). An abuse of discretion takes place when the sentencing court’s reasons or
rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.
Id.ANALYSIS
Reasonable Suspicion for Investigatory Stop.
Rush asserts that the district court erred in admitting all evidence seized from him as a
result of the investigatory stop, because the stop of the van he was driving was unsupported by a
reasonable suspicion. Rush first argues that the officers’ mistaken identification of the driver of
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the van as Timothy means that the officers did not have articulable facts upon which to base a
reasonable suspicion. Rush also argues that once it was discovered that Timothy was not the
driver, the officers no longer had any reasonable suspicion of criminal activity.
A traffic violation, no matter how minor, creates probable cause to stop the driver of a
vehicle. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012). Probable cause for a traffic
stop merely requires that the facts available to the officer would cause a reasonably cautious
person to believe that the suspect has committed an offense; it does not demand any showing that
this belief be correct or more likely true than false. State v. Au, 285 Neb. 797, 829 N.W.2d 695(2013). The U.S. Supreme Court has long held that under the Fourth Amendment, a police
officer who lacks probable cause but whose observations lead him reasonably to suspect that a
particular person has committed, is committing, or is about to commit a crime, may detain that
person briefly in order to investigate the circumstances that provoke suspicion. Id. Reasonable
suspicion entails some minimal level of objective justification for detention, something more
than an inchoate and unparticularized hunch, but less than the level of suspicion required for
probable cause. Id.An investigative stop is limited to brief, nonintrusive detention during a frisk for weapons
or preliminary questioning. State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010). While this
type of encounter is considered a “seizure” and invokes Fourth Amendment safeguards, because
of its less intrusive character, this type of encounter requires only that the stopping officer have
specific and articulable facts sufficient to give rise to reasonable suspicion that a person has
committed or is committing a crime. Id. An investigatory stop and resulting inquiry must be
reasonably related in scope to the justification for their initiation. State v. Au, supra. Typically,
this means that the officer may ask the detainee a moderate number of questions to determine his
identity and to try to obtain information confirming or dispelling the officer’s suspicions. Id. See,
also, State v. McGinnis, 8 Neb. App. 1014, 608 N.W.2d 605 (2000).
We agree with the district court’s conclusion that the officers had a reasonable and
articulable suspicion that Timothy was operating a motor vehicle on a suspended license and
therefore lawfully stopped the van. An investigatory stop was justified to allow Kossow and
Roach to investigate their reasonable suspicion that Timothy was driving the van. Because the
purpose of an investigative stop is to clarify ambiguous situations, even when it is equally
probable that the vehicle or its occupants are innocent of any wrongdoing, police must be
permitted to act before their reasonable belief is verified by escape or fruition of the harm it was
their duty to prevent. See State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996). Both officers
testified that they looked at the driver of the van, compared their observations to the two
photographs of Timothy they had available, and concluded that the driver was Timothy. These
observations, coupled with the fact that the van was registered to Timothy, whose license was
suspended, provided the officers with sufficient reasonable suspicion to stop the van to
investigate further.
Once the officers lawfully stopped the van, they immediately discovered that Timothy
was not driving the van. That discovery dispelled their reasonable suspicion that Timothy was
driving the van while his license was suspended. However, that is not the end of the inquiry in
this case, as additional circumstances led to the continued investigation. First, the driver of the
van did not immediately pull over despite the officers’ having activated their cruiser’s overhead
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lights and siren. Second, and more important, it was immediately apparent to the officers that the
driver of the van, albeit not Timothy, was intoxicated. The articulable facts which support this
conclusion were the strong odor of alcohol coming from Rush, as well as his slurred speech,
watery and bloodshot eyes, and extreme confusion. Thus, the officers were faced with reasonable
suspicion that the driver of the van was involved in criminal activity beyond that which initially
justified the stop. See, State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013); State v. Lamb, supra.
An officer is required to have only a reasonable, articulable suspicion that a motorist was driving
under the influence in order to expand the scope of the initial traffic stop and detain him or her
for field sobriety tests. State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010). We conclude that
the officers had a reasonable, articulable suspicion that Rush was driving under the influence and
were thus justified in expanding the scope of the initial traffic stop in order to perform field
sobriety tests. It was also lawful at that point for the officers to detain Rush while checking his
license. See State v. Holman, 221 Neb. 730, 380 N.W.2d 304 (1986). The results of the field
sobriety tests further justified administering the PBT and ultimately placing Rush under arrest for
DUI. Under the circumstances of this case, the district court did not err in overruling the motion
to suppress evidence resulting from the investigatory stop.
Suppression of Rush’s Statements.
Rush asserts that the district court erred in admitting statements made by him, because
such statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966). When a person is in custody and interrogated by government officials,
Miranda v. Arizona requires the now-familiar set of warnings regarding the right to remain
silent, that statements may be used as evidence against the person, and the right to an attorney.
See State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012). “Interrogation,” under Miranda v.
Arizona, refers not only to express questioning, but also to any words or actions on the part of the
police that the police should know are reasonably likely to elicit an incriminating response from
the suspect. State v. Bauldwin, supra.
Rush argues that the statements he made during his initial contact with the police should
have been suppressed as custodial interrogation without the benefit of the Miranda warnings.
Specifically, Rush argues his statements that he had only “one” and that he knew he did not have
a license were the product of unlawful custodial interrogation. Rush points to the testimony of
the officers that he was not free to leave at the time he made these statements.
The Miranda procedures were not meant to preclude law enforcement personnel from
performing their traditional investigatory functions such as general on-the-scene questioning.
State v. Holman, 221 Neb. 730, 380 N.W.2d 304 (1986); State v. Bennett, 204 Neb. 28, 281
N.W.2d 216 (1979). In on-the-scene investigations, the police may interview any person not in
custody and not subject to coercion for the purpose of determining whether a crime has been
committed and who committed it. Id. Further, roadside questioning of a driver detained pursuant
to a routine traffic stop does not constitute custodial interrogation for purposes of Miranda.
Instead, there must be some further action or treatment by the police to render a driver in custody
and entitled to Miranda warnings. State v. Holman, supra; State v. Brauer, 16 Neb. App. 257,
743 N.W.2d 655 (2007). In State v. Brauer, the defendant was initially stopped for a traffic
violation. Upon contact with the defendant, the law enforcement officer detected an odor of
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alcohol, and the defendant acknowledged having been drinking. The officer placed the defendant
in the cruiser to conduct on-the-scene investigation and questioning, based on his reasonable,
articulable suspicion that the defendant might have been driving while intoxicated. This court
concluded that the trial court did not err in denying the defendant’s motion to suppress his
statements made during this investigation. Id.The statements Rush complains of all occurred at the time of the investigatory stop and
fall within the context of on-the-scene roadside questioning as part of the investigatory stop.
Because those statements were made in the process of an investigation to determine whether
criminal activity was afoot, the statements were not custodial and Miranda warnings were not
required. Rush’s argument is without merit.
Findings of Fact in Suppression Order.
Rush asserts that the district court erred in failing to make sufficient findings of fact in its
order denying his motions to suppress.
Starting with State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996), the Nebraska
Supreme Court has required district courts to articulate in writing or from the bench their general
findings when denying or granting a motion to suppress. The court noted that the degree of
specificity in doing so would vary from case to case depending on the facts of each case. See id.In this case, the district court found in its order that the statements made by Rush “upon
initial contact and prior to his arrest were freely, voluntarily, knowingly and intelligently made”;
that Rush was not in custody when these statements were made; and that these statements were
admissible. The court then proceeded to consider the statements made by Rush after he was
arrested. The court found that the statements Rush made that he was refusing a chemical test
were admissible, as were his volunteered statements, including the name calling and his
comment that he “wanted to go to his cell and pass out.” The court concluded, however, that any
statements made by Rush in response to questions of the officers should be suppressed. The
court’s findings with respect to the statements made by Rush were in compliance with State v.
Osborn and of sufficient specificity to allow appellate review of the court’s decision. Rush’s
assignment of error is without merit.
Wording of Advisement Form.
Rush asserts that the district court erred in admitting evidence that he failed to submit to a
breath test, because the postarrest chemical test advisement form did not comply with
§ 60-6,197(5) and the policy position set forth in State v. Turner, 263 Neb. 896, 644 N.W.2d 147(2002).
Section 60-6,197(5) provides:
Any person who is required to submit to a chemical blood, breath, or urine test or tests
pursuant to this section shall be advised that refusal to submit to such test or tests is a
separate crime for which the person may be charged. Failure to provide such advisement
shall not affect the admissibility of the chemical test result in any legal proceedings.
However, failure to provide such advisement shall negate the state’s ability to bring any
criminal charges against a refusing party pursuant to this section.
State v. Turner, supra, provides that the right of a person suspected of DUI to refuse a chemical
test is a matter governed purely by statute. It further provides that under § 60-6,197, a person
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arrested for DUI must be advised that refusal to submit to a chemical test is a separate crime for
which the person may be charged, but he or she need not be advised of any additional
consequences of a refusal to submit to a chemical test.
The advisement read to Rush informed him: “Refusal to submit to such test or tests is a
separate crime for which you may be charged.” The advisement given Rush clearly complies
with the statutory requirements of § 60-6,197(5). Rush tries to draw a distinction between being
advised that he could be charged with a separate crime and being advised that he could be
charged with an additional or enhanced crime.
Rush was charged in the Information with “DUI - with Refusal of Chemical Test (2 prior
convictions)” pursuant to §§ 60-6,196 and 60-6,197.03(6), a Class IIIA felony. Section
60-6,197.03 provides that any person convicted of a violation of § 60-6,196 or § 60-6,197 (DUI)
shall be punished as follows:
(6) If such person has had two prior convictions and, as part of the current
violation, . . . refused to submit to a test as required under section 60-6,197, such person
shall be guilty of a Class IIIA felony, and the court shall, as part of the judgment of
conviction, revoke the operator’s license of such person for a period of fifteen years from
the date ordered by the court . . . .
Thus, Rush was charged with the combined offense of DUI and refusal to submit, which was an
enhanced charge due to his two prior convictions. Rush argues that because this statute contains
a greater penalty as a result of recidivism, it is an “additional” crime, not a separate crime or an
additional consequence. Essentially, Rush asserts that he should have been informed that failure
to submit to the breath test would result in a combined DUI/refusal offense and that such refusal
would be an aggravated offense due to his prior convictions.
We find no merit in Rush’s argument. There is no basis in either § 60-6,197(5) or case
law to require that a defendant be informed of the additional consequence of a refusal to submit
due to having prior convictions. The fact that Rush’s refusal to submit led to the combined
charge of DUI, third offense, with refusal to submit, does not render the advisement given in this
case incorrect.
Sufficiency of Evidence.
Rush asserts that the evidence was insufficient to sustain his conviction for DUI, third
offense, with refusal to submit to a chemical test, because a rational trier of fact could not have
found that he was under the influence.
In arguing this assignment of error, Rush points to the fact that there were no observed
traffic violations prior to the stop and that the van was stopped because the officers thought
Timothy was driving it on a suspended license. Rush suggests that multiple reasons could exist
for his failure to immediately stop the van, his slurred speech, his watery and bloodshot eyes, the
odor of alcohol, and his performance on the field sobriety tests.
The relevant question for this court is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Wiedeman, 286 Neb. 193, ___ N.W.2d
___ (2013). Rush was able to, and did, present evidence regarding these alternative explanations
to the jury, which apparently rejected them. There was sufficient evidence presented to support a
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finding beyond a reasonable doubt that Rush was operating a motor vehicle while under the
influence of alcoholic liquor and that he refused to submit to a chemical test. This assignment of
error is without merit.
Excessive Sentences.
Rush asserts that the district court erred by imposing excessive sentences. The jury found
Rush guilty of DUI, third offense, with refusal to submit to a chemical test, a Class IIIA felony,
and driving during revocation, a Class II misdemeanor. See, § 60-6,196; § 60-6,197.03(6);
§ 60-4,108(1)(a). The court sentenced Rush to a term of 4 to 5 years’ imprisonment for the
DUI/refusal conviction and to a concurrent term of 3 to 3 months’ imprisonment for the driving
during revocation conviction. The court also revoked Rush’s license for 15 years and gave him
credit for 223 days served.
Pursuant to Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012), a Class IIIA felony is
punishable by up to 5 years’ imprisonment, a $10,000 fine, or both. Pursuant to Neb. Rev. Stat.
§ 28-106 (Cum. Supp. 2012), a Class II misdemeanor is punishable by up to 6 months’
imprisonment, a $1,000 fine, or both. Rush’s sentences were all within the statutory range. And
as noted above, an appellate court will not disturb a sentence imposed within the statutory limits
absent an abuse of discretion by the trial court. State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801(2013). When imposing a sentence, a sentencing judge should consider the defendant’s (1) age,
(2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved in the commission of the crime.
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013). The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circumstances surrounding the
defendant’s life. Id.Rush was 52 years old at the time of the crimes in this case. He has an 11th grade
education. Rush has a lengthy criminal history, dating back to 1982. It includes convictions for
theft (three times), shoplifting, disturbing the peace (twice), trespass, assault, DUI (three priors),
and a refusal to submit. Rush refused to participate in the presentence investigation, but the
limited information he provided indicated that his longest period of employment was 5 years--he
is currently unemployed due to being in jail. No risk assessment evaluation was conducted
because of Rush’s refusal to participate.
The record shows that the district court considered the relevant factors in sentencing
Rush. We find no abuse of discretion in the sentences imposed.
CONCLUSION
The district court did not err in overruling Rush’s motions to suppress and made
sufficient findings of fact in connection with the suppression order. Because the postarrest
chemical test advisement form read to Rush complied with statutory requirements, the district
court did not err in admitting evidence that Rush failed to submit to a breath test. The evidence
was sufficient to sustain Rush’s DUI conviction, and the court did not impose excessive
sentences.
AFFIRMED.
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