State v. McIntyre ( 2015 )

Nebraska Advance Sheets
STATE v. McINTYRE 1021
Cite as 290 Neb. 1021
with the appellate jurisdiction of the Supreme Court, the dis-
trict court is directed, upon the release of this opinion and prior
to the issuance of the mandate, to forthwith consider whether
it would be appropriate to grant release of Armstrong on bond
under any conditions it deems warranted.
Affirmed.
Cassel, J., not participating.
State of Nebraska, appellee, v.
Joshua J. McIntyre, appellant.
___ N.W.2d ___
Filed May 29, 2015. No. S-14-595.
1. Administrative Law: Statutes: Appeal and Error. The meaning and interpre-
tation 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, ordi-
nary, and popular sense.
4. Criminal Law: Statutes. Penal statutes receive a sensible construction, consider-
ing the evils and mischiefs sought to be remedied.
5. ____: ____. 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 suffi-
cient 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.
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9. Indictments and Informations. Objections to the form or content of an informa-
tion 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 sen-
tence 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 stan-
dard 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.
Appeal from the District Court for Lancaster County:
Stephanie F. Stacy, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and
Shawn Elliott for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
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 sub-
mit to a chemical test of his breath. Witnesses for the State
testified that McIntyre intentionally withheld air from the test-
ing 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
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Cite as 290 Neb. 1021
registered a “Deficient Sample.” We conclude that evidence of
a chemical breath test that records a deficient sample is admis-
sible if the State lays sufficient foundation.
BACKGROUND
Factual Background
On April 10, 2013, McIntyre went to a bar with two cowork-
ers. 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 dur-
ing the early morning of April 11, 2013. Genoways was driv-
ing 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 paper-
work.” Such “dexterity problems,” Genoways testified, indi-
cate impairment. In addition, Genoways noticed that McIntyre
smelled strongly of alcohol, his eyes were “watery and blood-
shot,” his eyelids were “droopy,” and he spoke with a “pro-
nounced 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 stan-
dardized 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 test-
ing center and was “pretty drunk.”
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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 check-
list to be completed by the officer administering the chemi-
cal 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’ instruc-
tions. 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 main-
tenance officer for the Lincoln Police Department’s breath
testing devices in 2009 and attended a 2-day class on the
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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 alco-
hol 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.
P rocedural History
The State filed an information alleging that McIntyre oper-
ated 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 sustained
the State’s motion. At the same hearing, the State amended the
original information by interlineation. The amended informa-
tion adds—as an alternative to the allegation that his breath
alcohol content was at least .15—an allegation that McIntyre
refused to submit to a chemical test. McIntyre told the court
that he had a chance to review the amended information.
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After accepting McIntyre’s not guilty plea to the amended
information, the court asked if “there is anything else we
need to take up with respect to the Amended Information.”
McIntyre’s attorney said that there was not. McIntyre did not
move to quash the amended information.
McIntyre moved in limine to prohibit references “to any
read out or result from the formal breath test during which the
State claims that [McIntyre] failed to provide sufficient breath
sample or refused to submit to a formal breath test.” McIntyre
argued that such evidence was irrelevant or, if relevant, the
court should exclude it under Neb. Evid. R. 403.1
At the hearing on McIntyre’s motion in limine, Kocian gave
testimony similar to his testimony at trial. Kocian stated that
.218 was an accurate measurement of “the lowest possible
breath alcohol content” that McIntyre could have had at the
time of the test.
The court overruled McIntyre’s motion in limine the day
before trial. The court stated that a breath sample deemed defi-
cient by the testing device could nevertheless yield a reliable
measure of alcohol content. The court offered an alternative to
Kocian’s hill analogy:
Assuming that [a] thermometer is in good working
order, it takes about two minutes under your tongue or
under your arm to register a valid temperature. If some-
body takes that thermometer out after one minute and
that thermometer reads 101, that is reliable evidence of a
fever. Even though the person’s actual temperature may
be higher than 101, it can reliably be concluded that the
temperature is not lower than 101.
The court concluded “the test result is sufficiently reliable to
be relevant and admissible.”
McIntyre’s attorney stated that “given the court’s ruling
on the motion in limine, I think the State should be required
to elect as to whether it’s .15 or refusal.” Although the court
viewed the theories as “logically inconsistent,” it overruled
McIntyre’s “oral motion that the State elect between alterna-
tive theories.”
1
Neb. Rev. Stat. § 27-403 (Reissue 2008).
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The jury found McIntyre guilty of driving under the influ-
ence of alcohol and also found that he had a breath alcohol
content of at least .15.
After an enhancement hearing, the court found that
McIntyre had two prior convictions for driving under the
influence. Because McIntyre had two prior convictions and
the jury found that his breath alcohol content was at least .15,
his crime is a Class IIIA felony punishable by up to 5 years’
imprisonment.2
The court sentenced McIntyre to 365 days’ imprisonment
and revoked his operator’s license for 15 years.
ASSIGNMENTS OF ERROR
McIntyre assigns, renumbered, that the court erred by (1)
not excluding evidence of “the highest [breath alcohol content]
value obtained from a deficient breath sample”; (2) not requir-
ing the State to elect between the theory that he had a breath
alcohol content of at least .15 and the theory that he refused
to submit to a chemical test; and (3) imposing an excessive
sentence. McIntyre also assigns that (4) the evidence is insuf-
ficient to support his conviction.
STANDARD OF REVIEW
[1] The meaning and interpretation of statutes and regula-
tions are questions of law which an appellate court resolves
independently of the lower court’s conclusion.3
ANALYSIS
Evidence of Chemical Test
With Deficient Sample
McIntyre argues that the results of a chemical test for
which the motorist gives a “deficient” sample are inadmissible.
He contends that “[t]he plain language of Title 177 [of the
Nebraska Administrative Code] does not permit the numeri-
cal results of a deficient breath sample to be made part of the
2
See Neb. Rev. Stat. §§ 28-105 (Cum. Supp. 2014) and 60-6,197.03(6)
(Cum. Supp. 2012).
3
See Liddell-Toney v. Department of Health & Human Servs., 281 Neb.
532, 797 N.W.2d 28 (2011).
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official record.”4 Because the result of a test with a deficient
sample cannot be part of the official record, McIntyre argues
that it cannot be evidence of his breath alcohol content.
Of course, the State sees it differently. It responds that
McIntyre’s interpretation of the regulations would permit bad
faith test takers to “‘game the system’”: “A person could sim-
ply feign compliance with the test by providing a deficient
breath sample, making it difficult to prove a refusal, and then
any [breath alcohol content] measurement obtained from that
sample would also be inadmissible, so [breath alcohol content]
could not be proved either.”5
We begin with an overview of the relevant statutes. Under
Neb. Rev. Stat. § 60-6,196 (Reissue 2010), a person commits
a crime by operating a motor vehicle (1) while under the
influence of alcoholic liquor, (2) with a concentration of .08
of 1 gram or more by weight of alcohol per 100 milliliters
of his or her blood, or (3) with a concentration of .08 of 1
gram or more by weight of alcohol per 210 liters of his or
her breath.
The penalties for violating § 60-6,196 are described in
§ 60-6,197.03. Section 60-6,197.03(6) provides:
If such person has had two prior convictions and, as part
of the current violation, had a concentration of fifteen-
hundredths of one gram or more by weight of alcohol
per one hundred milliliters of his or her blood or fifteen-
hundredths of one gram or more by weight of alcohol per
two hundred ten liters of his or her breath or refused to
submit to a test as required under section 60-6,197, such
person shall be guilty of a Class IIIA felony . . . .
A chemical test of a person’s blood, breath, or urine is
admissible in a prosecution for driving under the influence if
the requirements of Neb. Rev. Stat. § 60-6,201 (Reissue 2010)
are met. Section 60-6,201(3) provides:
To be considered valid, tests of blood, breath, or urine
made under section 60-6,197 . . . shall be performed
according to methods approved by the Department of
4
Brief for appellant at 15-16.
5
Brief for appellee at 20.
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Health and Human Services and by an individual pos-
sessing a valid permit issued by such department for such
purpose . . . . The department may approve satisfactory
techniques or methods to perform such tests and may
ascertain the qualifications and competence of individ­
uals to perform such tests and issue permits which shall
be subject to termination or revocation at the discretion
of the department.
The Legislature has therefore conferred on the Department of
Health and Human Services the power to adopt methods for
determining when chemical tests are valid.6
The regulations adopted by the department appear in title
177 of the Nebraska Administrative Code. The regulations
define “[v]alid test” as one “performed according to methods
approved by the Department by an individual possessing a
valid permit.”7 The regulations, at 177 Neb. Admin. Code,
ch. 1, § 002.01 (2009), address how breath test results are
reported for “MEDICO-LEGAL PURPOSES.” At the time of
McIntyre’s arrest, this regulation provided:
Breath Test Results. Report of Breath Test Results of a
test for alcohol of breath shall be reported as hundredths
or thousandths of a gram of alcohol per 210 liters of
breath on the checklist. Test results shall not be rounded
upward. For example, an analysis producing a result of
.138 shall be reported as .13 or as .138.
002.01A No digital result shall be reported on the
checklist unless the device has received a sufficient breath
sample and completely executes its prescribed program
and prints a test record card to indicate that the program
has been completed.
002.01B Prescribed Program. When a breath testing
device fails to print a record card or the record card indi-
cates an incomplete or deficient sample, this indicates
that the device has not completed its prescribed program.
6
Morrissey v. Department of Motor Vehicles, 264 Neb. 456, 647 N.W.2d
644 (2002), disapproved in part on other grounds, Hahn v. Neth, 270 Neb.
164, 699 N.W.2d 32 (2005).
7
177 Neb. Admin. Code, ch. 1, § 001.26 (2009).
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Such deficient sample does not constitute a completed test
or sufficient sample of breath and would be considered
to be a refusal. Such deficient sample does not constitute
a completed test, but is scientifically probative up to the
amount indicated by the testing device at the time that the
breath testing procedure stopped.
002.01C The completed checklist found in these rules
and regulations shall be the official record of breath
test results.
002.01D The printing of a test record card indicates
that the prescribed program of the evidentiary breath test-
ing device has been completed.
....
002.01E Record Requirements in Performance of Tests.
The testing records must show adherence to the approved
method, and techniques.
The checklist approved for DataMaster tests is referred to as
“Attachment 2.”8
[2] 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 admin-
istered 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.9
McIntyre contends that the State did not satisfy the third
foundational element: compliance with the department’s meth-
ods as described in the regulations. Acknowledging that other
courts have held that tests of deficient samples can be evidence
of a motorist’s breath alcohol content,10 McIntyre seeks to
8
See 177 Neb. Admin. Code, ch. 1, § 008.01C (2009).
9
See State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008).
10
See, U.S. v. Brannon, 146 F.3d 1194 (9th Cir. 1998); State v. Mazzuca,
132 Idaho 868, 979 P.2d 1226 (Idaho App. 1999); State v. DeMarasse, 85
N.Y.2d 842, 647 N.E.2d 1353 (1995); State v. Conrad, 187 W. Va. 658,
421 S.E.2d 41 (1992); State v. Wilkinson, 181 W. Va. 126, 381 S.E.2d 241
(1989); Williams v. District of Columbia, 558 A.2d 344 (D.C. 1989).
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distinguish these cases on the ground that Nebraska’s statutes
and regulations specifically prohibit such evidence. Therefore,
our task is one of interpretation.
[3-6] 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 consid-
ered in its plain, ordinary, and popular sense.11 Penal statutes
receive a sensible construction, considering the evils and mis-
chiefs sought to be remedied.12 We will not supply missing
words or sentences to make clear that which is indefinite, or
supply what is not there.13 For purposes of construction, a rule
or regulation of an administrative agency is generally treated
like a statute.14
The regulations promulgated by the Department of Health
and Human Services obviously create some tension. Section
002.01 states that the result of a deficient sample is not a
completed test, cannot be recorded on the appropriate check-
list, and is considered a refusal. But § 002.01B specifically
provides that a deficient sample “is scientifically probative up
to the amount indicated by the testing device at the time the
breath testing procedure stopped.” So, the apparently Janus-
faced regulation seems to both accept and reject the same
thing. And the answer is not obvious. But we conclude that
construing the regulations sensibly in light of the mischief
sought to be remedied, they permit the State to introduce the
results of a test with a deficient sample if the results are oth-
erwise admissible.
It appears that § 002.01 synthesizes two aims. First, motorists
with an alcohol content above the statutory thresholds should
not be able to avoid criminal liability by withholding a suffi-
cient sample, thereby preventing the device from determining
their true breath alcohol content. Nor should a motorist be able
to take advantage of giving a deficient sample by offering the
11
State v. Robbins, 253 Neb. 146, 570 N.W.2d 185 (1997).
12
See State v. Thacker, 286 Neb. 16, 834 N.W.2d 597 (2013).
13
See id.
14
See Utelcom, Inc. v. Egr, 264 Neb. 1004, 653 N.W.2d 846 (2002).
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result as evidence of his or her actual (i.e., maximum) alcohol
concentration. Thus, if a motorist manifests an unwillingness
to submit to a chemical test by giving a deficient sample, the
regulations require the arresting officer to record the result as
a refusal. Second, a reliable measure of a motorist’s minimum
breath alcohol content should not be barred simply because the
result would have been even higher if the motorist gave a full
sample. If the test of a deficient sample exceeds the statutory
alcohol concentration levels and the State satisfies the founda-
tional elements for admissibility, then the State may offer the
result as evidence of the motorist’s minimum breath alcohol
content despite the lack of a full sample.
McIntyre’s interpretation also creates some wiggle room for
bad faith test takers. An intoxicated motorist might withhold
a full sample, thereby preventing the State from introducing
the test results even if they exceed the statutory thresholds.
But the motorist could still blow hard enough to cause the
device to print a test record card, thereby lending credibility
to the motorist’s defense to a refusal charge. This strategy is
obviously not a guaranteed winner, but it might give some
motorists an incentive to evade giving a sufficient sample of
their breath.
McIntyre directs us to State v. Baue,15 but that case did
not involve a deficient sample. There, the defendant sat for
a chemical test of his breath and the device “registered both
a digital readout of .12 and an error reading.”16 The device
did not print a record card. The defendant took a second test,
which resulted in a reading of .11 and no error message. Over
the defendant’s objection, the arresting officer testified about
the result of the first test. The jury convicted the defendant of
driving under the influence.
We reversed, concluding that the first foundational element
for a breath test—the testing device worked properly—was
not met as to the first result. The evidence showed that the
device generated a printed card in addition to the digital
15
State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000).
16
Id. at 971, 607 N.W.2d at 196.
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display when it worked correctly. The checklist set forth in
the regulations required the insertion and removal of the test
record card, and we declined to assume that the card was a
meaningless formality. The arresting officer himself believed
that the lack of a test record card showed that the device did
not work properly.
Here, the printout stated that the sample was deficient, not
that the device encountered an error. Kocian testified that the
“DEFICIENT SAMPLE” notation meant that the sample was
large enough to measure only McIntyre’s “minimum breath
alcohol content.” Nothing indicates that the device malfunc-
tioned or otherwise worked improperly.
Nor are the series of Kansas cases that McIntyre cites
persuasive.17 Like the Kansas statutes at issue in those cases,
§ 60-6,196 provides that the State can convict a motorist on
proof that the motorist operated a motor vehicle while under
the influence of alcohol or with a particular alcohol content
in his or her blood, breath, or urine. But Kansas’ statutes
expressly stated that the results of deficient sample tests were
admissible in the first class of cases and not in the second.
Nebraska’s statutes and the regulations promulgated thereunder
do not draw such a distinction.
[7] In conclusion, 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.
Election
McIntyre argues that “a plain reading of the [driving under
the influence] statutes” allowed the State to prosecute him
on the theory that his breath alcohol content was at least .15
17
See, State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007), abrogated on
other grounds, State v. Ahrens, 296 Kan. 151, 290 P.3d 629 (2012); State v.
Herrman, 33 Kan. App. 2d 46, 99 P.3d 632 (2004); State v. Maze, 16 Kan.
App. 2d 527, 825 P.2d 1169 (1992). See, also, State v. Kieley, 413 N.W.2d
886 (Minn. App. 1987); State v. Hallfielder, 375 N.W.2d 571 (Minn. App.
1985); Godderz v. Commissioner of Public Safety, 369 N.W.2d 606 (Minn.
App. 1985).
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or the theory that he refused a chemical test, but not both.18
He contends that § 60-6,197.03(6) “does not authorize the
State to proceed to trial under alternative theories in a single
prosecution.”19 Because the theories are “logically inconsist­
ent” as a matter of statutory interpretation, he argues that the
State must pick one or the other.20
[8] McIntyre asserts that if the State charges a defendant
with alternative means of committing the same crime, the
alternatives must not be incongruous. He cites the rule that
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.21
[9] But McIntyre failed to preserve this issue for appellate
review. Neb. Rev. Stat. § 29-1808 (Reissue 2008) provides:
“A motion to quash may be made in all cases when there is a
defect apparent upon the face of the record, including in the
form of the indictment or in the manner in which the offense is
charged.” Objections to the form or content of an information
should be raised by a motion to quash.22 McIntyre’s argument
that the amended information alleged alternate enhancement
theories that are inconsistent as a matter of law would be a
defect apparent on the face of the record. Whether the theories
were inconsistent under the rules of statutory interpretation
did not depend on what evidence the State might adduce at
trial. McIntyre could have raised the alleged defect in a motion
to quash.23
18
Brief for appellant at 16.
19
Id. at 33.
20
Id. at 34.
21
State v. Novak, 181 Neb. 90, 147 N.W.2d 156 (1966); Hoffman v. State,
164 Neb. 679, 83 N.W.2d 357 (1957).
22
State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015).
23
See, State v. Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003); State
v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997); State v. Novak, supra
note 21; Sudyka v. State, 123 Neb. 431, 243 N.W. 276 (1932). See, also,
Winkelmann v. State, 114 Neb. 1, 205 N.W. 565 (1925).
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STATE v. McINTYRE 1035
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By failing to move to quash the amended information
because it alleged inconsistent theories of committing a sin-
gle crime, McIntyre waived that objection.24 Neb. Rev. Stat.
§ 29-1812 (Reissue 2008) provides: “The accused shall be
taken to have waived all defects which may be excepted to by
a motion to quash, or a plea in abatement, by demurring to an
indictment or pleading in bar or the general issue.” Thus, we
have held that a defendant’s failure to move to quash an infor-
mation generally waives any objections to it.25
[10] Nor can we treat McIntyre’s last-minute oral motion
to elect as a motion to quash. A defendant’s waiver of
defects under § 29-1812 is mandatory.26 In general, a court
cannot entertain a motion to quash if the defendant’s not
guilty plea still stands.27 McIntyre did not move for leave to
withdraw his plea to the amended information. Because his
not guilty plea remained on the record, any motion to quash
was untimely.28
McIntyre also urges us to treat the amended information
as if it joined multiple offenses. He cites Sheppard v. State,29
in which the State charged the defendant with three separate
counts of receiving stolen automobiles. Each count related to a
different date and a vehicle owned by a different person. The
defendant argued that the trial court should have sustained his
pretrial “motion to elect.”30 We explained that trial courts had
discretion to permit “‘joinder in one indictment, in separate
counts, of different felonies, at least of the same class or grade,
and subject to the same punishment.’”31 We affirmed because
24
See Sudyka v. State, supra note 23.
25
See, e.g., State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). But see
State v. Golgert, 223 Neb. 950, 395 N.W.2d 520 (1986).
26
State v. Liston, 271 Neb. 468, 712 N.W.2d 264 (2006).
27
See, id.; State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996).
28
See State v. Conklin, supra note 27.
29
Sheppard v. State, 104 Neb. 709, 178 N.W. 616 (1920).
30
Id. at 710, 178 N.W. at 617.
31
Id. at 711, 178 N.W. at 617, quoting Pointer v. United States, 151 U.S.
396, 14 S. Ct. 410, 38 L. Ed. 208 (1894).
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1036 290 NEBRASKA REPORTS
the defendant had not shown that he was so “confounded or
prejudiced in his defense as to call for a reversal.”32
The joinder of offenses—the question addressed in
Sheppard—is not before us in this case. Certain offenses
are single crimes that the State can prove under different
theories.33 Because each alternative theory is not a separate
crime, the theories do not require the State to charge the
crime as separate alternative counts.34 Here, the State charged
McIntyre with a single count. We have noted that a violation
of § 60-6,196 is one offense which can be proved in more
than one way.35 The same reasoning applies to the alternative
theories under § 60-6,197.03(6). We note that Neb. Rev. Stat.
§ 29-2002 (Reissue 2008) now controls the joinder or separa-
tion of charges for trial.36
Furthermore, McIntyre has not explained how he was preju-
diced. He argues:
[T]he failure of the district court to require the State to
elect between inconsistent theories prejudiced [McIntyre]
by resulting in erroneous and prejudicial evidentiary rul-
ings as discussed in the first assigned error. [McIntyre]
was further prejudiced because he had to somehow struc-
ture the theory of his case to defend against conflicting
and logically inconsistent evidence.37
Neither of these arguments are persuasive. First, we conclude
that the result of his breath test was admissible despite the
deficient sample. Second, the bare assertion that the court
received “logically inconsistent evidence” does not conclu-
sively show prejudice. Evidence that McIntyre gave a defi-
cient sample was relevant to both the .15 and refusal theories.
Even if there was some spillover of evidence between the two
32
Id. at 711, 178 N.W. at 617.
33
State v. Brouillette, supra note 23.
34
Id.
35
State v. Baue, supra note 15.
36
State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
37
Brief for appellant at 34.
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STATE v. McINTYRE 1037
Cite as 290 Neb. 1021
theories, we conclude that McIntyre was not so prejudiced as
to require a new trial.
Excessive Sentence
McIntyre argues the sentence of 365 days’ imprisonment
is excessive. He emphasizes that he completed a substance
abuse program and that he has a child support obligation
of $83 per month, which he implies he will have trouble
paying while incarcerated. McIntyre believes that probation
was appropriate because “[t]he fact that [he] completed his
prior probation sentences established that he would cooperate
with probation.”38
[11] We cannot say that the court abused its discretion by
sentencing McIntyre to 365 days’ imprisonment. The principles
of law governing the review of sentences are so familiar that
we need not repeat them here.39 An appellate court will not
disturb a sentence imposed within the statutory limits absent
an abuse of discretion by the trial court.40 The court did not
consider McIntyre to be a candidate for probation, because he
underwent probation before and, as shown by his most recent
conviction, probation did not prompt him to change his behav-
ior. The court further reasoned that probation would depreciate
the seriousness of the crime and that there was a “substantial”
risk that McIntyre would reoffend. In addition to two prior
driving under the influence convictions, McIntyre has convic-
tions for driving under suspension, driving under revocation,
and negligent driving.
Insufficient Evidence
[12] McIntyre argues that the evidence is not sufficient to
support his conviction. In reviewing a sufficiency of the evi-
dence claim, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appel-
late court does not resolve conflicts in the evidence, pass on
38
Id. at 39-40.
39
See State v. Carngbe, 288 Neb. 347, 847 N.W.2d 302 (2014).
40
State v. Ortega, ante p. 172, 859 N.W.2d 305 (2015).
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1038 290 NEBRASKA REPORTS
the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact.41 The relevant question is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.42
We conclude that the evidence is sufficient. As to § 60-6,196,
Genoways testified that she stopped a motor vehicle operated
by McIntyre and that McIntyre showed signs of impairment.
McIntyre himself testified that he drove “under the influence
of alcohol.” As to enhancement under § 60-6,197.03(6), the
State presented evidence that McIntyre had two prior convic-
tions and that his breath alcohol content was at least .218, well
above the .15 threshold. A rational trier of fact could have
found the essential elements of McIntyre’s crime beyond a
reasonable doubt.
CONCLUSION
Despite some textual friction, we conclude that 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. Furthermore,
the district court did not abuse its discretion in sentencing
McIntyre and the evidence was sufficient to support his con-
victions. We do not reach his argument that the amended infor-
mation alleged two inconsistent methods of committing the
same crime.
Affirmed.
41
State v. Hale, ante p. 70, 858 N.W.2d 543 (2015).
42
Id.