State v. McIntyre

863 N.W.2d 471

State of Nebraska, Appellee

v.Joshua J. McIntyre, Appellant.

No. S-14-595

Supreme Court of Nebraska.

Filed May 29, 2015

Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. 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.

2. Drunk Driving: Blood, Breath, and Urine Tests. The State must establish four foundational elements for the admissibility of a breath test in a driving under the influence prosecution: (1) The testing device was working properly at the time of the testing; (2) the person who administered the test was qualified and held a valid permit; (3) the test was properly conducted under the methods stated by the Department of Health and Human Services; and (4) all other statutes were satisfied.

3. Criminal Law: Statutes: Legislature: Intent. In reading a penal statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

4. Criminal Law: Statutes. Penal statutes receive a sensible construction, considering the evils and mischiefs sought to be remedied.

5. Criminal Law: Statutes. A court will not supply missing words or sentences to make clear that which is indefinite in a penal statute, or supply what is not there.

6. Administrative Law. For purposes of construction, a rule or regulation of an administrative agency is generally treated like a statute.

7. Administrative Law: Drunk Driving: Blood, Breath, and Urine Tests. The driving under the influence statutes and the regulations promulgated by the Department of Health and Human Services do not bar evidence of the result of a chemical breath test with a deficient sample if the State lays sufficient foundation.

8. Criminal Law: Indictments and Informations. Where a statutory crime may be committed by any of several methods, the indictment or information may charge in a single count that it was committed by any or all of the enumerated methods if they are not inconsistent with or repugnant to each other.

9. Indictments and Informations. Objections to the form or content of an information should be raised by a motion to quash.

10. Pleas. In general, a court cannot entertain a motion to quash if the defendant's not guilty plea still stands.

11. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

12. Evidence: Appeal and Error. 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. The relevant question 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.

Connolly, J.

SUMMARY

The State charged Joshua J. McIntyre with operating a motor vehicle under the influence of alcohol. The operative information further alleged either that McIntyre did so with a breath alcohol content of at least .15 of 1 gram by weight of alcohol per 210 liters of his breath or that he refused to submit to a chemical test of his breath. Witnesses for the State testified that McIntyre intentionally withheld air from the testing device, resulting in a sample size that the device labeled “Deficient.” Nevertheless, the device reported that McIntyre's breath alcohol content was .218. The jury convicted McIntyre of operating a motor vehicle under the influence of alcohol and further found that his breath alcohol content was .15 or greater. On appeal, McIntyre argues that the results of the chemical test are inadmissible because the testing device

registered a “Deficient Sample.” We conclude that evidence of a chemical breath test that records a deficient sample is admissible if the State lays sufficient foundation.

BACKGROUND

Factual Background

On April 10, 2013, McIntyre went to a bar with two coworkers. He arrived at 10:15 or 10:30 p.m. and left at about 2 a.m. on April 11. In less than 4 hours, McIntyre testified that he drank two beers, four or five mixed drinks, and about two shots of some type of liqueur. Although he knew that he was “under the influence of alcohol,” McIntyre volunteered to drive his friend's car because his companions seemed even more intoxicated.

Sara Genoways, a Lincoln police officer, was on patrol during the early morning of April 11, 2013. Genoways was driving on Interstate 180 at 2:32 a.m. when she saw a red Mazda traveling northbound. Genoways followed the Mazda and saw it weave between lane lines and vacillate between 50 and 75 miles per hour in a 60–mile–per–hour zone.

Genoways stopped the Mazda and asked the driver, McIntyre, for his personal identification, vehicle registration, and insurance. Genoways said that McIntyre had “difficulty retrieving his license” and “was fumbling with his paperwork.” Such “dexterity problems,” Genoways testified, indicate impairment. In addition, Genoways noticed that McIntyre smelled strongly of alcohol, his eyes were “watery and bloodshot,” his eyelids were “droopy,” and he spoke with a “pronounced slur.”

McIntyre agreed to perform field sobriety tests. Genoways administered the horizontal gaze nystagmus test, and McIntyre showed all six signs of impairment. Because of bad weather, Genoways did not administer any other standardized test.

Believing that McIntyre was intoxicated, Genoways arrested him and took him to a testing center. She interviewed McIntyre, and he admitted that he was under the influence. At trial, McIntyre testified that he “started to really feel it” at the testing center and was “pretty drunk.”

After McIntyre's waiting period ended, Genoways prepared him to take a chemical test of his breath on a DataMaster, a device that uses the infrared absorption method to measure alcohol content. Genoways told McIntyre to “take a deep breath [and] blow long and consistently into the machine” until he was “completely out of air.” He began the test, and the device started to make a constant tone, but then began beeping. Genoways explained that the device emits “short little beeps” if “somebody is not blowing” and “make[s] a long steady tone” if “somebody is blowing sufficiently.” According to Genoways, McIntyre “was puffing out his cheeks and acting like he was blowing in the machine” without really doing so. Genoways believed that McIntyre understood her instructions and knew that he was not blowing hard enough.

McIntyre eventually exhausted the DataMaster's “two-minute window,” and the device “time[d] out.” After the test ended, the machine produced a “printout” stating “DEFICIENT SAMPLE, INCOMPLETE TEST.” Nevertheless, the printout recorded a breath alcohol content of .218 and stated that the “VALUE PRINTED WAS HIGHEST OBTAINED.” The printout includes a graph of the flow of air into the machine and the alcohol content of that air. The Nebraska Department of Health and Human Services' regulations provide a checklist to be completed by the officer administering the chemical test. Because the sample was deficient, Genoways wrote “Refused” in the field for McIntyre's breath alcohol content in the DataMaster checklist.

McIntyre testified that he misunderstood Genoways' instructions. He said that Genoways told him to “blow until I heard a flat line.” So, he blew until he “heard the flat line” and then stopped. McIntyre testified that he tried to comply and denied that he was “just puffing [his] cheeks out.” But McIntyre admitted that he knew that “.15 is a more offense [sic] than .08.”

Todd Kocian was the officer responsible for maintaining the machine into which McIntyre blew. Kocian became a maintenance officer for the Lincoln Police Department's breath testing devices in 2009 and attended a 2–day class on the

DataMaster in 2012. Kocian testified that on March 19 and April 25, 2013, he performed maintenance checks on the device McIntyre used, and that the machine worked correctly on both occasions. Based on the maintenance records, Kocian opined that it was in working order on April 11.

Over McIntyre's objection, Kocian also testified about the accuracy of a test with a deficient sample. Kocian explained that a DataMaster's measurement of blood or breath alcohol content eventually “plateau[s]” once the subject provides “deep lung air” that is “consistent with the blood.” The device deems a sample deficient if the measurement of breath alcohol never plateaued. But Kocian stated that a deficient sample could still yield a “scientifically accurate” result. He analogized:

[I]f we had a large hill and I was going to have somebody measure the distance to the top of the hill, and I gave you some sort of measuring device, [and] I started you up the hill and never got to the top of the hill and stopped at some point, I don't know how tall the hill is, but I know how far you got up that hill.

That is, Kocian testified that .218 was McIntyre's minimum, but not maximum, breath alcohol content.

Procedural History

The State filed an information alleging that McIntyre operated a motor vehicle while under the influence of alcohol or when he had a breath alcohol concentration of .08 or more. The State further alleged that McIntyre had a concentration of .15 or more and that he had two prior convictions for driving under the influence.

Before trial, the State orally moved for leave to amend the information. McIntyre did not object, and the court...