State v. Wang ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
State of Nebraska, appellee, v.
Jin R. Wang, appellant.
___ N.W.2d ___
Filed August 14, 2015. No. S-14-671.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion
to suppress evidence based on a claimed violation of the Fourth
Amendment, an appellate court applies a two-part standard of review.
Regarding historical facts, the court reviews the trial court’s findings for
clear error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that the court reviews independently of
the trial court’s determination.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
3. Drunk Driving: Blood, Breath, and Urine Tests: Police Officers and
Sheriffs. Neb. Rev. Stat. § 60-6,199 (Reissue 2010) does not require
an arresting officer to inform the person to be tested of his or her
right to obtain an evaluation by an independent physician and addi-
tional testing.
4. Due Process: Drunk Driving: Blood, Breath, and Urine Tests:
Police Officers and Sheriffs. There is no due process violation if
the officer does not give an advisement of the statutory right to an
independent evaluation and testing under Neb. Rev. Stat. § 60-6,199
(Reissue 2010).
5. Constitutional Law: Drunk Driving: Blood, Breath, and Urine
Tests: Police Officers and Sheriffs. Because there is no statutory or
constitutional requirement that a defendant be advised of his or her
rights under Neb. Rev. Stat. § 60-6,199 (Reissue 2010), there is no con-
stitutional requirement that an advisement must be given in a language
the defend­ant understands.
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
6. Statutes: Equal Protection: Discrimination. When a statute does not
create a classification on its face, it violates equal protection only when
the defendant can show the law was enacted or applied with a discrimi-
natory purpose.
Appeal from the District Court for Lancaster County: K aren
B. Flowers and Robert R. Otte, Judges. Affirmed.
Mark E. Rappl for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Jin R. Wang appeals his conviction in the district court for
Lancaster County for driving under the influence (DUI), third
offense. Wang claims that the district court erred when it over-
ruled his motion to suppress evidence of a chemical breath
test and admitted the evidence at trial. Wang argues that the
evidence should have been suppressed because his alleged
statutory right to advisement under Neb. Rev. Stat. § 60-6,199
(Reissue 2010) and his constitutional rights to due process
and equal protection were violated when the arresting officer
failed to advise him, in a language he could understand, that
he had a right to obtain an evaluation by an independent phy-
sician and additional laboratory testing. We find no error and
affirm Wang’s conviction.
STATEMENT OF FACTS
At issue in this case is § 60-6,199 which provides:
The peace officer who requires a chemical blood,
breath, or urine test or tests pursuant to § 60-6,197 may
direct whether the test or tests shall be of blood, breath,
or urine. The person tested shall be permitted to have a
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
physician of his or her choice evaluate his or her condi-
tion and perform or have performed whatever laboratory
tests he or she deems appropriate in addition to and
following the test or tests administered at the direction
of the officer. If the officer refuses to permit such addi-
tional test to be taken, then the original test or tests shall
not be competent as evidence. Upon the request of the
person tested, the results of the test or tests taken at the
direction of the officer shall be made available to him
or her.
Wang, who is Chinese and only speaks “some English,” was
arrested on suspicion of driving under the influence. Wang was
taken to a “Detox” center, where he was required to submit to
a chemical breath test. The officer who arrested Wang read to
him, in English, an advisement stating that under § 60-6,199,
he was permitted to have a physician of his choice evaluate his
condition and perform whatever laboratory tests the physician
deemed appropriate.
Prior to trial, on October 18, 2013, Wang moved the dis-
trict court to suppress evidence of the results of his breath test
because, inter alia, he was not properly advised of his right
to obtain testing by an independent physician. Wang claimed
that despite an obvious language barrier, the arresting officer
neglected to ensure that he understood his rights.
In an order filed February 6, 2014, the district court over-
ruled Wang’s motion to suppress. The court noted first that
although § 60-6,199 provides that a person arrested for DUI
has a right to be evaluated by an independent physician who
may perform additional tests, the statute includes no require-
ment that the person be advised of these provisions. The court
found that despite the lack of a statutory requirement that an
advisement be given, the officer who arrested Wang read the
statute to Wang in English and the evidence showed that a
copy of the statute, also in English, was posted on the wall
of the room in which Wang was tested. The court found that
it was “highly doubtful” Wang understood the advisement
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
the officer read to him and that the officer made no effort to
determine whether Wang understood it. However, the court
concluded that because the statute did not require an advise-
ment, there was no due process violation. The court noted
that the results of the chemical breath test would be deemed
incompetent as evidence if the State had hampered Wang’s
efforts to obtain an independent test, but the court concluded
that the failure to communicate the advisement to Wang in his
first language was not the equivalent of hampering his efforts
to exercise his right to an independent test and that therefore,
the failure to advise Wang in a language he understood was not
a violation of Wang’s rights.
Following a bench trial, the court found Wang guilty of
DUI, and after an enhancement hearing, the court found that
it was Wang’s third offense. The court sentenced Wang to 60
days in jail and a 3-year term of probation.
Wang appeals.
ASSIGNMENT OF ERROR
Wang claims that the district court erred when it over-
ruled his motion to suppress and allowed the results of the
chemical breath test into evidence. He argues that the failure
to advise him of the provisions of § 60-6,199 in a language he
understood violated statutory, due process, and equal protec-
tion rights.
STANDARDS OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to
suppress evidence based on a claimed violation of the
Fourth Amendment, we apply a two-part standard of review.
State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Regarding historical facts, we review the trial court’s find-
ings for clear error. But whether those facts trigger or violate
Fourth Amendment protections is a question of law that we
review independently of the trial court’s determination. State
v. Knutson, supra.
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
the court below. State v. Russell, 291 Neb. 33, 863 N.W.2d 813
(2015).
ANALYSIS
Wang claims on appeal that the district court erred when
it overruled his motion to suppress evidence of the results of
the chemical breath test and admitted the evidence at trial.
He argues that the evidence was obtained in violation of his
statutory, due process, and equal protection rights because the
officer failed to advise him, in a language he understood, that
in accordance with § 60-6,199, he “shall be permitted to have
a physician of his or her choice evaluate his or her condition
and perform or have performed whatever laboratory tests he or
she deems appropriate in addition to and following the test or
tests administered at the direction of the officer.” We conclude
that the district court did not err when it determined that there
was no violation of Wang’s statutory or constitutional rights
and when it overruled his motion to suppress and received evi-
dence of the chemical breath test at trial.
Wang concedes that in prior cases, we have held that
§ 60-6,199 creates no statutory right that a defendant be
advised of the provisions therein. In State v. Klingelhoefer,
222 Neb. 219, 225, 382 N.W.2d 366, 370 (1986), we held
that § 60-6,199, which was then codified at Neb. Rev. Stat.
§ 39-669.09 (Reissue 1984), “does not require the officer to
inform the person to be tested of his privilege to request an
independent test.” In Klingelhoefer, we cited State v. Miller,
213 Neb. 274, 328 N.W.2d 769 (1983), and noted that in
Miller, we had “reaffirmed” this holding, which had been fol-
lowed in prior cases. 222 Neb. at 225, 382 N.W.2d at 370.
Wang urges us to review and overrule the holdings in
Klingelhoefer and the prior cases cited therein. He con-
tends that this court should recognize a statutory right to an
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
advisement. Wang notes that in Klingelhoefer, three judges
dissented and opined an advisement should be required and
that two of the three judges had previously dissented in Miller.
We decline Wang’s invitation to overrule the Klingelhoefer
line of cases.
We begin our analysis by noting that fundamental to the rea-
soning of the dissenting judges in Miller was their view that the
“underlying philosophy” that had led the U.S. Supreme Court
to require Miranda warnings applied equally to § 60-6,199.
213 Neb. at 282, 328 N.W.2d at 774 (Krivosha, C.J., dissent-
ing; White, J., joins). That is, they reasoned that before an
individual can waive a constitutional right, he or she must have
been informed of that right. The Miller dissent assumed the
existence of a constitutional right to an independent test and
thus a corresponding duty to advise. We decline to adopt the
rationale of the dissent in Miller.
In considering Wang’s argument, we keep in mind the dis-
tinction between constitutional rights and statutory rights. The
U.S. Supreme Court has made clear that the rights that are the
subject of Miranda warnings are of constitutional dimension.
In contrast, statutory rights, such as the independent evalua-
tion and testing privileges in § 60-6,199, are “simply a matter
of grace bestowed by the . . . legislature.” South Dakota v.
Neville, 459 U.S. 553, 565, 103 S. Ct. 916, 74 L. Ed. 2d 748
(1983). Given the nature and origin of the right to independent
evaluation and testing, we see no basis to adopt the rationale
of the dissent in State v. Miller, supra.
[3] Turning to the terms of § 60-6,199, we see no language
which would support a statutory requirement of an advise-
ment. There is no explicit statutory language requiring an
advisement, and we do not read such a requirement into the
statute. See State v. Rodriguez, 288 Neb. 714, 850 N.W.2d
788 (2014) (it is not within appellate court’s province to read
meaning into statute that is not there). Other states that have
found a statutory right to an advisement have based it on
explicit language in the statute. For example, the Supreme
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
Court of Washington in State v. Turpin, 94 Wash. 2d 820,
823, 620 P.2d 990, 992 (1980), noted that the Washington
statute, Wash. Rev. Code Ann. § 46.20.308(1) (West 1970),
explicitly provided that the arresting “‘officer shall inform
the person of his right to refuse the test, and of his right to
have additional tests administered by any qualified person
of his choosing.’” See, also, Hilliard v. Elfrink, 77 Ohio St.
3d 155, 157, 672 N.E.2d 166, 168 (1996) (citing Ohio Rev.
Code Ann. § 4511.19(D)(3) (LexisNexis Supp. 1995), which
provided: “‘The person tested may have a physician, a reg-
istered nurse, or a qualified technician or chemist of his own
choosing administer a chemical test or tests in addition to any
administered at the request of a police officer, and shall be so
advised’”). Given the language of § 60-6,199, we agree with
and reaffirm the holding in State v. Klingelhoefer, 222 Neb.
219, 382 N.W.2d 366 (1986), and prior cases, that § 60-6,199
does not require an arresting officer to inform the person to be
tested of his or her right to obtain an evaluation by an inde-
pendent physician and additional testing.
Wang raises additional arguments based on constitutional
principles, specifically due process and equal protection. He
contends that even if there is no statutory right to an advise-
ment, it is a violation of constitutional due process for an
arresting officer to fail to advise an arrestee of the right
to independent evaluation and testing found in § 60-6,199.
Challenges to a failure to give an advisement on due proc­
ess grounds have been considered and repeatedly rejected
by other courts. For example, in Kesler v. Department of
Motor Vehicles, 1 Cal. 3d 74, 459 P.2d 900, 81 Cal. Rptr. 348
(1969), the California Supreme Court stated that the legisla-
tion at issue therein did not require the arresting officer to
advise the driver of the availability of an additional test at
his own expense and that the principles of due process did
not so require. The court observed that due process required
an opportunity for additional testing but not an advisement.
Compare Montano v. Superior Court Pima County, 149 Ariz.
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
385, 719 P.2d 271 (1986) (stating that due process requires
giving advisement that independent breath testing is available
only where state does not perform chemical tests). In view
of the language of § 60-6,199 and constitutional principles,
we agree with the California Supreme Court that where an
arrestee is unimpeded, due process does not require giving
an advisement.
We have referred to South Dakota v. Neville, 459 U.S. 553,
103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), earlier in this opin-
ion and again find its analysis helpful in our consideration
of Wang’s due process argument. Neville involved the use of
evidence of a defendant’s refusal to take a chemical test where
the defendant had not been advised that refusal could be used
against him in court. The U.S. Supreme Court held that the
use of evidence of the defendant’s refusal to take a test, albeit
unwarned, “comported with the fundamental fairness required
by Due Process.” 459 U.S. at 566. The Court reasoned that due
process did not require advisement of statutory, as opposed to
constitutional, rights and that due process did not require an
advisement of all potential consequences of a defendant’s
choices surrounding testing.
[4,5] By similar reasoning, we conclude that there is no due
process violation if the officer does not give an advisement
of the statutory right to independent evaluation and testing
under § 60-6,199. No advisement is required by the statute,
and because the rights are statutory rather than constitutional,
due process does not require an advisement. Because there
is no statutory or constitutional requirement that a defend­
ant be advised of his or her rights under § 60-6,199, there
is no constitutional requirement that an advisement must be
given in a language the defendant understands. Other courts
have applied similar reasoning. In People v. Wegielnik, 152
Ill. 2d 418, 428, 605 N.E.2d 487, 491, 178 Ill. Dec. 693,
697 (1992), the Supreme Court of Illinois stated: “Because
due process does not require that . . . warnings [regard-
ing the consequences of refusal] be given at all, it does not
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
require that they be given in a language the defendant under-
stands.” For the foregoing reasons, we reject Wang’s due
process argument.
[6] Finally, Wang contends that his right to equal protection
was violated because the advisement was given in a language
he did not understand. His argument is based on disparate
treatment between those who speak English and those who do
not. The State directs us to Rodriguez v. State, 275 Ga. 283,
565 S.E.2d 458 (2002). An argument similar to that asserted
by Wang was rejected in Rodriguez wherein the defendant
raised an equal protection challenge involving a statute which
required that an implied consent notice be read to an arrestee.
In Rodriguez, the Supreme Court of Georgia rejected the
arrestee’s challenge and noted, inter alia, that although the
statute required that a certain notice be read to an arrestee,
the statute did not require that the notice be read in English.
The Georgia court stated that “[w]hen a statute does not cre-
ate a classification on its face, it only violates equal protection
when the defendant can show the law was enacted or applied
with a discriminatory purpose.” 275 Ga. at 286, 565 S.E.2d
at 461.
In the present case, the Nebraska statute, § 60-6,199, does
not require any advisement, much less require that an advise-
ment be given in English. Therefore, the statute on its face
does not differentiate between English speakers and others.
Wang needed to show that, as applied, the officer’s reading
of the advisement in English was done with a discriminatory
purpose. The district court found that the officer’s failure to
advise Wang in a language he understood was not the equiva-
lent of hampering Wang’s efforts to obtain an independent
test. We construe this as a finding that there was no discrimi-
natory purpose behind the officer’s giving the advisement
in English. Because the officer was not required to give an
advisement, either statutorily or constitutionally, we agree
with the district court’s analysis that there was no discrimina-
tory purpose in the officer’s failure to give an advisement in
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. WANG
Cite as 291 Neb. 632
a language that Wang understood and that there was no equal
protection violation.
CONCLUSION
The district court did not err when it determined that there
was neither a statutory nor constitutional requirement for the
officer to advise Wang of his right to independent evaluation
and testing under § 60-6,199. As such, the failure to give an
advisement in a language Wang understood was not a viola-
tion of his due process or equal protection rights, as the dis-
trict court found. We therefore conclude that the district court
did not err when it overruled Wang’s motion to suppress and
received evidence of the results of the chemical breath test at
trial. We affirm Wang’s conviction for DUI, third offense.
A ffirmed.
Heavican, C.J., not participating.