State v. Weinreis ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. WEINREIS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
DANIEL D. WEINREIS, APPELLANT.
Filed November 9, 2021. No. A-21-149.
Appeal from the District Court for Scotts Bluff County, ANDREA D. MILLER, Judge, on
appeal thereto from the County Court for Scotts Bluff County, Kris D. Mickey, Judge. Judgment
of District Court affirmed.
Bell Island, of Island Law Office, P.C., L.L.O, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
MOORE, BISHOP, and ARTERBURN, Judges.
MOORE, Judge.
INTRODUCTION
Daniel D. Weinreis appeals from an order of the district court for Scotts Bluff County
affirming the Scotts Bluff County Court’s order denying Weinreis’ motion to suppress and finding
him guilty of driving under the influence (DUI). For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
Charges.
The charges in this case arise out of an incident occurring on December 21, 2019. Weinreis
was stopped by law enforcement for speeding. The officer who stopped him observed that
Weinreis’ eyes were watery and bloodshot and his speech was slurred. Weinreis admitting to
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consuming a few drinks at a bar. The officer conducted field sobriety tests and a preliminary breath
test, after which he arrested Weinreis and transported him to the hospital for a blood draw.
On January 6, 2020, the State filed a complaint in the county court, charging Weinreis with
first offense DUI in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010), a Class W
misdemeanor, and speeding in violation of Neb. Rev. Stat. § 60-6,186 (Cum. Supp. 2020), an
infraction. Specifically, the State alleged that Weinreis operated a motor vehicle upon a public
highway while having a concentration of .15 of 1 gram or more by weight of alcohol per 100
milliliters of his blood and that he drove a vehicle on a highway at 96 m.p.h. when the maximum
limit was 70 m.p.h.
Motion to Suppress.
On March 3, 2020, Weinreis filed a motion to suppress, alleging that the warrantless stop,
seizure and arrest of Weinreis, and collection of evidence were all unlawful. Weinreis also alleged
that his blood sample was obtained unlawfully without a warrant or valid consent.
A suppression hearing was held on June 17, 2020. The county court heard testimony from
Nebraska State Patrol Trooper Jonathan Royle and Weinreis. The court also received exhibits
including copies of video recordings from Royle’s vehicle, the results of Weinreis’ preliminary
breath test, and a postarrest chemical advisement form signed by Royle and Weinreis. We note
that in his arguments to the court, Weinreis’ attorney conceded all objections set forth in the motion
to suppress except the propriety of the blood draw and the voluntariness of Weinreis’ consent.
Royle testified that on December 21, 2019, he was on duty driving on the highway near
Minatare, Nebraska when he observed a vehicle that appeared to be speeding. When Royle first
observed Weinreis, he was in a 50-m.p.h. zone, and Royle estimated Weinreis’ speed to be about
70 m.p.h. By the time Royle activated his radar, Weinreis had traveled into a 70-m.p.h. zone, and
Royle used his radar to confirm that the vehicle was driving 96 m.p.h. at that point. Royle followed
the vehicle, activated his overhead emergency lights, and initiated a probable cause traffic stop.
Royle contacted the driver, whom he identified as Weinreis. Upon making contact, Royle observed
that Weinreis’ eyes were bloodshot and watery and that he had a slow reaction time. When Royle
asked Weinreis if he had been drinking, Weinreis replied that he had consumed “several
whiskey/waters” at a bar in McGrew, Nebraska. Royle then administered field sobriety tests, with
Weinreis showing signs of impairment on each of them, and a preliminary breath test, which
showed a result of .178. After that, Royle arrested Weinreis for DUI and transported him to the
hospital for a blood draw.
A review of the video files admitted into evidence shows that while in Royle’s vehicle,
Weinreis asked what they would be doing at the hospital. Royle informed Weinreis that they would
be doing a blood draw and asked if Weinreis was willing to submit to one. Weinreis replied,
although his response is unclear from the video. Royle then informed Weinreis that it would be a
separate crime to refuse and stated, “But, uh, we’ll get a warrant first and that’s gonna make the
night go on longer.” Weinreis’ subsequent response is also unclear from the video.
Royle testified that upon reaching the hospital, he escorted Weinreis inside and testified
that he “was asking if [Weinreis] would submit to a blood draw or advising him that it is a blood
draw that [Royle was] seeking and he can submit to it or refuse it.” More specifically, Royle
testified that his advisement consisted of reading the advisement form to Weinreis “verbatim.”
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However, when asked whether he read “the whole thing verbatim,” Royle testified that he read
“[j]ust the part that was relevant,” which he confirmed “corresponds to the checkmarks.” The form
admitted into evidence was marked with Weinreis’ name and birth date, after which it states:
You are under arrest for operating or being in actual physical control of a motor
vehicle while under the influence of alcoholic liquor or drugs.
(1) Pursuant to law, I am requiring you to submit to a chemical test or tests
of your breath to determine the concentration of alcohol in your body. Refusal to submit to
such test or tests is a separate crime for which you may be charged.
or
(2) X I am asking you to submit to a chemical test or tests of your blood or
urine to determine the concentration of alcohol or drugs in your body. You do not have to
submit to such test or tests, but if you refuse, we will seek a warrant requiring such test or
tests.
X Iconsent to a test or tests of my blood or urine.
or
I refuse to submit to a test or tests of my blood or urine.
(Emphasis in original.) In addition to the checkmarks noted as X’s above, the form was also
marked with Weinreis’ and Royle’s signatures and the date and time. According to Royle, after he
read the advisement, Weinreis agreed to provide a blood sample, which was obtained by hospital
personnel. According to Royle, Weinreis did not direct Royle to obtain a warrant, and he never did
anything during their contact while at the hospital that made Royle think Weinreis did not want to
provide the sample. Both Royle and Weinreis signed a separate form required by the hospital.
Weinreis testified that he recalled a conversation in Royle’s vehicle about the blood test
and about it being a separate charge if he refused. When asked whether after that conversation he
thought he could “decline or refuse to give [Royle] a test without being charged with a separate
crime,” Weinreis testified, “No. I just thought that was -- that was it. It would be another charge.”
He was also asked if when they reached the hospital, Royle “ever explain[ed] it differently to you
saying, no, that’s not correct, it’s not a separate charge,” to which Weinreis replied, “Not that I
recollect.” He also responded affirmatively when asked whether he believed when he gave the
blood that “if [he] didn’t let them take [his] blood it would be a separate charge [he] would be
charged with.”
On cross-examination, Weinreis acknowledged that Royle mentioned obtaining a warrant
if Weinreis did not give blood voluntarily. The following exchange then took place between the
prosecutor and Weinreis:
[PROSECUTOR:] And you actually clarified, so if I give blood, you won’t get a
warrant? That was a question you asked him on the video; correct?
[WEINREIS:] I believe that’s what the video was, but -- yeah.
[PROSECUTOR:] So after that conversation it was clear to you if you didn’t
voluntarily give blood this -- Trooper Royle was going to get a warrant for that blood?
[WEINREIS:] That I would be charged is what I -- there would be another charge
there if I didn’t give the blood. So. . . .
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[PROSECUTOR:] But you were also aware that he would go get a warrant because
he told you he would go get a warrant if you refused; correct?
[WEINREIS:] Yes.
[PROSECUTOR:] And so you knew that the plan was the night would be longer
because he would go get a warrant and then you would be charged with another crime if
you didn’t give blood?
[WEINREIS:] Yes.
On June 6, 2020, the county court entered an order denying Weinreis’ motion to suppress.
The court rejected Weinreis’ argument that because Royle discussed with Weinreis the fact that
refusal to submit to a test was a separate crime and because Weinreis testified that he understood
he was required to give a blood test, the court was required to find that Weinreis’ consent to the
blood test was not voluntary. The court observed that Weinreis’ argument ignored other evidence,
including Royle’s statement to Weinreis that a warrant would be required if Weinreis refused to
submit to the blood test; Royle’s subsequent verbatim recitation of the portion of the postarrest
chemical test advisement pertaining to blood tests (informing Weinreis he did not have to submit
to a test, but if he refused, a warrant would be sought); and the checkmark next to the portion of
the form indicating Weinreis’ consent. The court concluded that any possible misunderstanding of
Royle’s prior remarks was clarified by the language of the advisement, which the court noted was
“precisely the reason for the standardized form advisement.” The court also observed that had a
warrant been obtained and Weinreis elected to refuse the blood draw, it is a correct statement of
the law that such refusal is a separate crime for which he could be charged. The court found that
if there was any inaccuracy or misunderstanding of Royle’s comments and colloquy with Weinreis
prior to the reading of the advisement, “such misunderstanding was adequately clarified and there
is no constitutional violation.”
Stipulated Bench Trial.
A stipulated bench trial was held before the county court on July 30, 2020. As part of the
parties’ agreement to a stipulated bench trial, the State dismissed the speeding charge against
Weinreis and filed an amended complaint charging him with first offense DUI (blood alcohol
concentration of .08 or more), a Class W misdemeanor. Additional evidence adduced at trial
included a copy of Royle’s police report and a copy of the lab report showing that Weinreis’ blood
alcohol content was “.169 g/100 ml.” This evidence was received without objection at trial, subject
to Weinreis’ renewal of his motion to suppress.
Based on the parties’ stipulations and other evidence adduced at trial, the county court
found Weinreis guilty of DUI. The court subsequently sentenced Weinreis to 9 months’ probation.
Appeal to District Court.
Weinreis appealed to the district court, asserting in his statement of errors that the county
court erred in denying his motion to suppress when it determined that his consent for the blood
draw was voluntary. On December 4, 2020, the district court heard Weinreis’ appeal, receiving the
bill of exceptions from the county court proceedings into evidence. The district court subsequently
affirmed the county court’s judgment. Looking at the totality of the circumstances, the district
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found that Weinreis’ consent was voluntary and that the motion to suppress had been appropriately
denied. Weinreis then perfected his appeal to this court.
ASSIGNMENT OF ERROR
Weinreis asserts that the district court erred in affirming the county court’s decision
denying his motion to suppress.
STANDARD OF REVIEW
Both the district court and a higher appellate court generally review appeals from the
county court for error appearing on the record. State v. Collins, 307 Neb. 581, 950 N.W.2d 89(2020). 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. An appellate court independently reviews questions of
law in appeals from the county court. Id. When deciding appeals from criminal convictions in
county court, an appellate court applies the same standards of review that it applies to decide
appeals from criminal convictions in district court. Id.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. State
v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021). Regarding historical facts, an appellate 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 an appellate court reviews independently of the
trial court’s determination. Id.Likewise, an appellate court applies a two-part analysis when reviewing whether a consent
to search was voluntary. State v. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020). As to the historical
facts or circumstances leading up to a consent to search, the appellate court reviews the trial court’s
findings for clear error. Id. However, whether those facts or circumstances constituted a voluntary
consent to search, satisfying the Fourth Amendment, is a question of law, which the appellate court
reviews independently of the trial court. State v. Saitta, supra. And where the facts are largely
undisputed, the ultimate question is an issue of law. Id.ANALYSIS
Weinreis asserts that the district court erred in affirming the county court’s decision
denying his motion to suppress. He argues that the results of his blood draw should have been
suppressed because it was obtained without a warrant and his consent was involuntary.
The Fourth Amendment prohibits unreasonable searches and seizures, and it is
well-established that the taking of a blood, breath, or urine sample is a search. State v. Degarmo,
305 Neb. 680, 942 N.W.2d 217 (2020). Searches without a valid warrant are per se unreasonable,
subject only to a few specifically established and well-delineated exceptions. Id. The warrantless
search exceptions Nebraska has recognized include (1) searches undertaken with consent, (2)
searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain
view, and (5) searches incident to a valid arrest. Id.In Birchfield v. North Dakota, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), the U.S. Supreme
Court held that a blood test may not be administered without a warrant as a search incident to an
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arrest for DUI. In State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017), the Nebraska Supreme
Court examined Birchfield and its implications on Nebraska law, concluding:
Birchfield does not make categorically invalid a warrantless blood draw based on actual
consent when a driver is incorrectly advised that the driver is required to submit to such a
test or will face criminal penalties for a refusal. Rather, a court must consider the totality
of the circumstances to determine whether a driver’s consent to a blood test was freely and
voluntarily given.
State v. Hoerle, 297 Neb. at 846, 901 N.W.2d at 331-32.
Generally, to be effective under the Fourth Amendment, consent to a search must be a free
and unconstrained choice, and not the product of a will overborne. State v. Degarmo, supra.Consent for a warrantless search must be given voluntarily and not as a result of duress or coercion,
whether express, implied, physical, or psychological. Id. The determination of whether the facts
and circumstances constitute a voluntary consent to a search, satisfying the Fourth Amendment, is
a question of law. Id. Whether consent to a search was voluntary is to be determined from the
totality of the circumstances surrounding the giving of consent. Id. While there is no requirement
that police must always inform citizens of their right to refuse when seeking permission to conduct
a warrantless consent search, knowledge of the right to refuse is a factor to be considered in the
voluntariness analysis. Id.Here, while they were on their way to the hospital, Weinreis asked Royle about the blood
draw process. Royle informed him that refusal to submit could result in additional charges but a
warrant would be obtained. At the hospital, Royle also read Weinreis the portion of the postarrest
Post chemical test advisement form, which informed him that he did not have to submit to a test
but that if he refused a warrant requiring such a test would be sought. The form was marked to
show that Weinreis consented to the test and was signed by him. A statement of a law enforcement
agent that, absent a consent to search, a warrant can be obtained does not constitute coercion. Id.We note that had Royle obtained a warrant and Weinreis refused a blood draw at that point,
there are still circumstances after Birchfield v. North Dakota, supra, in which this refusal could
constitute a separate crime; thus, Royle’s statement to Weinreis in the cruiser to that effect was not
necessarily inaccurate. See, Neb. Rev. Stat. § 60-6,197 (Cum. Supp. 2020); State v. McCumber,
295 Neb. 941, 893 N.W.2d 411 (2017) (holding that § 60-6,197 is facially constitutional because
there are circumstances under which conviction for refusal under § 60-6,197 would be valid even
after Birchfield; explaining that charge for refusal to submit to chemical test could be valid if law
enforcement has obtained warrant to conduct blood draw or under exigent circumstances
preventing time to secure warrant).
In further support of his argument that his consent to the blood draw was not voluntary,
Weinreis also points to the small size of the blood draw room, the presence of hospital personnel,
and Royle’s location at the far edge of the room. There is nothing in the record to suggest that
Weinreis did not hear the advisement read by Royle, who observed the entire process and saw
nothing to suggest that Weinreis had not in fact consented. In addition to signing the advisement
form, Weinreis also signed a form required by the hospital for the blood draw.
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We conclude, as did both the county and the district courts, that Weinreis was aware of his
rights and consented to the blood draw. Based upon the totality of the circumstances, his consent
was voluntary and the motion to suppress was properly denied.
CONCLUSION
Because Weinreis voluntarily consented to the warrantless search of his blood, the search
fell within a recognized exception to the warrant requirement. Finding no error in the district
court’s decision to affirm the county court’s denial of Weinreis’ motion to suppress, we affirm.
AFFIRMED.
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