State v. Pester

294 Neb. 995

885 N.W.2d 713

State of Nebraska, appellee,

v.Richard Pester, appellant.

No. S-15-530.

Supreme Court of Nebraska.

Filed October 14, 2016.

Bell Island, of Island & Huff, P.C. L.L.O., Scottsbluff, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Matthew A. Dodd, of Dodd Law Firm, P.C., and Bradley P. Roth, of McHenry Haszard Law, Lincoln, for amicus curiae National College of DUI Defense.

Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Miller–Lerman, J.

NATURE OF CASE

Richard Pester appeals the decision of the district court for Scotts Bluff County in which the court affirmed his convictions following a jury trial in Scotts Bluff County Court for driving under the influence (DUI) and refusal to submit to a chemical test, both second offenses. The county court had overruled Pester's motion to quash the charge of refusal to submit to a chemical test; Pester had argued that criminalizing refusal was a violation of the constitutional rights to be free of unreasonable searches and seizures. The county court had also overruled Pester's motion to suppress evidence obtained as a result of his arrest; Pester had argued that there was not probable cause to support his arrest. On appeal, Pester assigns error to the district court's affirmance of such rulings and to its conclusion that the evidence was sufficient to support his convictions. We affirm the district court's order.

STATEMENT OF FACTS

Shortly after midnight on July 3, 2012, Scotts Bluff County Deputy Sheriff Kristopher Still found Pester slumped over the steering wheel of a vehicle parked in the lot of a farm implement dealership. The dealership was not open for business at the time. The lot of the dealership was bordered by three public highways, and there was no access to the lot other than by one of the three public highways. There were no gates or locks on the entrances, and the general public could drive onto the lot in order to enter the dealership building.

Still was driving past the back side of the business when he observed a quick flash of brake lights in the lot. Because of the time of night and the fact that the business was not open, Still pulled into the lot to check on the vehicle. Still got out of his patrol car and walked up to the vehicle. As he approached the vehicle, Still observed a man, later identified as Pester, hunched over the steering wheel. When he got closer, Still observed a partially filled whiskey bottle and a partially filled beer can on the front passenger-side floorboard. He also observed that the keys were in the ignition, although the engine was not running.

Still knocked on the vehicle's window several times and announced his presence before Pester responded. Still asked him to roll down a window so that they could talk. Still saw Pester turn the key in the ignition and roll down a power window. When Pester opened the window, Still smelled a strong odor of alcohol coming from the vehicle; he also observed that Pester had bloodshot eyes and a flushed face and that he slurred his speech. In response to Still's questioning, Pester said that he had been drinking. He also said that he was not the owner of the property on which he was parked but that he was tired and had stopped there to sleep.

Still asked Pester to get out of the vehicle so that Still could administer field sobriety tests. After Pester got out of the vehicle, Still could smell an “[o]verwhelmingly strong” odor of alcohol on his breath. Pester initially refused to give a breath sample, but Still eventually was able to get Pester to perform a preliminary breath test, which showed a result of .126. After Pester failed field sobriety tests, Still arrested Pester for DUI.

Still transported Pester to the Scotts Bluff County correctional facility. Still began preparations to administer a postarrest chemical test of Pester's breath, and he read a postarrest chemical test advisement form to Pester. When Still asked Pester to sign the form, Pester told Still that he would not submit to the chemical test of his breath.

The State charged Pester in county court with DUI, in violation of Neb. Rev. Stat. § 60–6,196 (Reissue 2010), and refusal to submit to a chemical test, in violation of Neb. Rev. Stat. § 60–6,197 (Cum. Supp. 2014). Both were charged as second offenses. Pester filed a motion to quash the charge of refusal to submit to a chemical test. Pester also filed a motion to suppress evidence obtained as a result of his arrest.

In the motion to quash, Pester asserted that the charge of refusal to submit to a chemical test pursuant to § 60–6,197 was “unconstitutional and in violation of the Fourth and Fourteenth Amendment[s] of the U.S. Constitution and [art. I,] § 7 of the Nebraska Constitution.” After a hearing in which Pester argued, inter alia, that § 60–6,197, criminalizing refusal of a chemical test, violated his constitutional right to refuse consent to a search, the county court overruled Pester's motion to quash.

In the motion to suppress, Pester asserted that his arrest and search were not based on “reasonable and articulable suspicion that a crime had been committed or was about to be committed.” Still testified at a hearing on the motion to suppress. At the end of the hearing, Pester's counsel stated that he did not take issue with the “stop or the initial contact” and that Still did not do anything improper by checking out the vehicle in the lot or the person sleeping inside the vehicle. Pester's counsel argued instead that “this rises to the level of an illegal arrest for DUI, an illegal investigation for DUI, and doesn't rise to the level of probable cause.” He generally asserted that because the area where Pester was parked was “not open to public access,” Pester could not have committed DUI, and that therefore it was improper for Still to arrest him for DUI and to require him to submit to a chemical test. In its order overruling Pester's motion to suppress, the county court stated that the State presented evidence that Pester “was in a parking lot open to public access ..., he was in control of a motor vehicle, the officer noted multiple signs of alcohol consumption, and [Pester] failed field sobriety tests.”

At the jury trial, the State presented evidence, including Still's testimony. After the State rested, Pester moved for a “directed verdict.” He generally argued that the State failed to prove DUI, because it failed to present evidence that he was on private property which was open to public access. The county court overruled Pester's motion. Pester presented evidence in his defense, including his own testimony to the general effect that he did not begin drinking until after he had parked his vehicle in the lot and that he did not drive the vehicle after he began drinking. On cross-examination, Pester admitted that he was drunk when Still found him, that he was sitting in the driver's seat with the keys in the ignition and was touching the steering wheel, and that he was sure that Still saw the brake lights on his vehicle illuminate when Still drove by the lot. After he rested his defense, Pester renewed his “motion for a directed verdict,” and the court again overruled the motion.

The jury found Pester guilty of DUI and refusal to submit to a chemical test. After an enhancement hearing, the county court found that both convictions were second offenses, and it later sentenced Pester on both convictions.

Pester appealed his convictions and sentences to the district court. He assigned as error the county court's overruling of his motion to quash and his motion to suppress. He also asserted that there was insufficient evidence to support his convictions, that the county court improperly enhanced the refusal conviction, and that the county court imposed excessive sentences. The district court rejected Pester's arguments regarding the motion to quash, the motion to suppress, insufficiency of the evidence, and enhancement. With regard to sentencing, the district court concluded that the sentence for DUI, second offense, was not excessive; however, the district court noted that the State conceded that the county court improperly imposed a sentence for the refusal conviction as a Class I misdemeanor rather than as a Class W misdemeanor. The district court therefore affirmed both convictions, the enhancement of both counts, and the sentence for DUI, but it remanded the cause for resentencing on the refusal conviction.

Pester appeals the district court's order.

ASSIGNMENTS OF ERROR

Pester claims, restated, that the district court erred when it (1) affirmed the order overruling his motion to quash the charge of refusal to submit to a chemical test, (2) affirmed the order overruling his motion to suppress, and (3) concluded that there was sufficient evidence to support his convictions. Pester does not assign error to the district court's conclusions regarding enhancement and sentencing.

STANDARDS OF REVIEW

In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. State v. Kleckner , 291 Neb. 539, 867 N.W.2d 273 (2015). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. Id . When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id . But we independently review questions of law in appeals from the county court. See id .

Regarding questions of law presented by a motion to quash, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court. State v. Gozzola , 273 Neb. 309, 729 N.W.2d 87 (2007).

In reviewing a trial court's ruling on a motion to...