State v. Baue

607 N.W.2d 191

258 Neb. 968

STATE of Nebraska, appellee, v. Jon C. BAUE, appellant.

No. S-99-198.

Supreme Court of Nebraska.

March 10, 2000.

Kim K. McGough, of Copple & Rockey, P.C., Norfolk, for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Jon C. Baue appeals from an order of the district court, for Pierce County, Nebraska, which affirmed his conviction for driving under the influence (DUI) of alcoholic liquor, second offense, following a jury trial in the county court for Pierce County. We reverse Baue's conviction and remand the cause for a new trial because of prejudicial error in the admission of certain evidence.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 6, 1997, at approximately 1:30 a.m., Baue was stopped for speeding by Nebraska State Patrol Trooper Greg Lammers. At the time of the stop, Baue was driving 79 miles per hour in a 55-miles-per-hour zone on a blacktop county road in Pierce County. Lammers detected a strong odor of alcoholic beverage emitting from the vehicle and observed that Baue had red, watery eyes. When questioned by Lammers, Baue admitted that he had consumed some alcohol.

Lammers then administered six field sobriety tests. Baue failed both a horizontal gaze nystagmus (HGN) test and a preliminary breath test, and passed an alphabet test, a one-legged stand test, a counting backward test, and a walk-and-turn test. Upon completion of the field sobriety tests, Lammers arrested Baue for DUI and transported him to the office of the Pierce County Sheriff for the purpose of administering a breath test utilizing the Intoxilyzer 4011AS testing device. Lammers held a class B permit issued by the Nebraska Department of Health which authorized him to utilize this device to test breath for alcohol content. In administering the test to Baue, Lammers followed a checklist approved and prescribed by a regulation of the Department of Health, 177 Neb. Admin. Code, ch. 1, § 007.04A2 (1990), for infrared absorption analysis using the Intoxilyzer Model 4011AS for breath specimens. When Baue provided the initial breath specimen, the device registered both a digital readout of .12 and an error reading, which required that the test be readministered. Lammers then conducted the test a second time, again utilizing the checklist, and obtained a valid reading of.11.

Prior to trial, Baue filed a motion in limine seeking to exclude all of the Intoxilyzer Model 4011AS test results on various grounds. During a pretrial hearing on this motion, Baue called Dr. John Vasiliades, an expert in toxicology and forensic toxicology, who testified that the Intoxilyzer Model 4011AS has an inherent analytical error of plus or minus .03, so that a reading of .11 could be as low as .08 or as high as .14. The State did not present evidence to rebut Vasiliades' testimony during the pretrial hearing. The county court overruled Baue's motion in limine.

During trial, Baue asserted a foundational objection when Lammers was asked to testify about the result of Baue's first Intoxilyzer test. The county court initially sustained the objection, but later overruled Baue's objection when the question was asked a second time and permitted Lammers to testify that the digital readout was.12. The court then gave the following instruction to the jury with respect to the initial test:

Okay, the test card did not print and an error light came on in the machine. The error light was an indication to the testing officer that there was a problem with that test. So the fact that the officer observed a .12 on the digital readout on that machine is not to be considered by you as evidence of the level of intoxication of the defendant at that time because the error light came on. So we had two factors. The error light and the digital readout. No printout on the card. The normal — counsel can correct me if I misstate this. Usual procedure would be to insert the card, have the test administered, breathe into the machine, the machine prints. It also shows a digital readout and that would be the result of the test. But in this case an error light came on. So the testimony is to the one — .12 is not evidence of the defendant's intoxication at that time. Do you all understand that. All right, very good.

Lammers' testimony regarding the result of the second Intoxilyzer test was also admitted over Baue's objection that the results of the test should be adjusted as a matter of law to take into account his expert's testimony that the test was subject to a .03 margin of error. The trial court rejected Baue's argument that the test should be adjusted as a matter of law, but permitted Baue to present the expert's testimony at trial. The State then presented a witness to rebut Vasiliades' testimony.

The jury returned a verdict of guilty, upon which Baue was convicted of second-offense DUI, fined $200, and placed on probation. Baue appealed to the district court for Pierce County, which affirmed. Baue then perfected this appeal, which we moved to our docket pursuant to our authority to regulate the caseloads of the Nebraska appellate courts. Additional facts will be set forth where pertinent to our analysis of Baue's various assignments of error.

II. ASSIGNMENTS OF ERROR

Baue assigns, renumbered and restated, that (1) the trial court erred in failing to suppress his arrest for lack of probable cause, (2) the trial court erred in failing to grant his motion to dismiss for insufficient evidence, (3) the trial court erred in failing to appoint him an expert witness to testify regarding the scientific acceptance of the HGN test, (4) the trial court erred in failing to adjust the results of his Intoxilyzer test as a matter of law after he presented unrefuted testimony regarding its margin of error, (5) the trial court erred in allowing the State to present evidence of the first Intoxilyzer test that did not print out a test record card, (6) the trial court erred in allowing the State to pursue a hearing regarding the admissibility of the HGN field sobriety test outside the presence of the fact finder, and (7) the trial court erred in admitting the evidence and testimony pertaining to the HGN test in the absence of foundational testimony to the trier of fact regarding the pertinent scientific principles.

III. ANALYSIS

1. PROBABLE CAUSE FOR ARREST

Baue filed a motion to suppress his arrest and all evidence obtained as a result thereof on the ground that the arrest was accomplished without probable cause. Following a pretrial hearing on this motion at which Lammers testified regarding the events and circumstances leading to Baue's arrest, the county court determined that based upon Lammers' observations of Baue at the time of the traffic stop and the fact that Baue failed the HGN and preliminary breath tests, Lammers had probable cause to arrest Baue for DUI. In making this determination, the court made reference to the fact that the traffic stop occurred at "1:30 in the morning, half hour after the bars close." The district court affirmed, noting the evidence of Baue's speeding, the smell of alcohol emanating from Baue's vehicle, and Baue's failure of the HGN and preliminary breath tests.

In reviewing a trial court's ruling on a motion to suppress, an appellate court reviews the ultimate determination of probable cause de novo and reviews the findings of fact made by the trial court for clear error, giving due weight to the inferences drawn from those facts by the trial court. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant. State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997); State v. Nissen, supra.

Baue argues on appeal that the county court based its probable cause finding in part upon evidence not contained in the record, i.e., the time when the "`bars close.'" Brief for appellant at 28. It does not appear that the district court considered this fact in affirming the probable cause finding, nor do we in our de novo review. We conclude that Lammers' observations at the time of the traffic stop, together with Baue's performance on the HGN and preliminary breath tests, established probable cause for the arrest and that the trial court did not err in overruling Baue's motion to suppress the arrest.

2. ADMISSION OF FIRST INTOXILYZER TEST RESULT

We next address Baue's contention that the trial court erred in permitting Lammers to testify over objection regarding the digital readout from the first Intoxilyzer test administered following Baue's arrest. In State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980),overruled on other grounds, State v. Obermier, 241 Neb. 802, 490 N.W.2d 693 (1992), this court articulated four foundational elements which the State must establish as a foundation for the 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 (4) that all other statutes were satisfied. Although Gerber involved results from a gas chromatograph intoximeter known as a "Breathalyzer," we held in State v. Bullock, 223 Neb. 182, 388 N.W.2d 505 (1986), that the same foundational elements were required to establish the admissibility of breath test results from the Intoxilyzer Model 4011AS.

It is apparent from the record that the first foundational requirement was not met with respect to the .12 result obtained from the initial breath test. Testimony adduced by the State established that when...