State v. Say ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. SAY
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.
DOH SAY, APPELLANT.
Filed April 14, 2020. No. A-19-030.
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and Kristi J. Egger for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
PIRTLE, RIEDMANN, and WELCH, Judges.
RIEDMANN, Judge.
INTRODUCTION
Doh Say appeals from his conviction and sentence in the district court for Lancaster County
for driving under the influence (DUI), greater than .15, third offense. Say argues that the court
erred in overruling his motion to suppress the results of his chemical breath test, that there was
insufficient evidence to convict him of DUI, and that he received an excessive sentence. We affirm.
BACKGROUND
On May 27, 2017, Say was stopped by a Lincoln police officer for making an improper
turn. After stopping Say, the officer noticed a strong odor of alcohol emanating from his vehicle,
and Say was slurring his words. The officer conducted a preliminary breath test, which revealed
Say had a blood alcohol content (BAC) of .331. He was transferred to the county jail, where he
was subjected to a chemical breath test, which was taken on May 28, and revealed he had 0.264
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grams of alcohol per 210 liters of breath. He was subsequently arrested for aggravated third offense
DUI.
Say was initially charged by complaint in the county court for Lancaster County in May
2017 with one count of DUI greater than 0.15 with two prior convictions, in violation of Neb. Rev.
Stat. § 60,6,196 (Reissue 2010) and Neb. Rev. Stat. § 60,6,197.03(6) (Cum. Supp. 2018), a Class
IIIA felony. He was bound over to the district court, where he was charged by information with
the same offense.
In June 2018, Say filed a motion to suppress the results of his chemical breath test. In his
motion, Say alleged that the breath test was not performed according to the methods approved by
the Nebraska Department of Health and Human Services (DHHS). Specifically, Say asserted that
the wet bath simulator solutions which were used to test the DataMaster, the machine used to test
his BAC, were accompanied by faulty certificates of analysis. The initial certificates of analysis
were signed by Alma Palmer, who stated that she tested and supplied the solutions provided.
However, amended certificates of analysis were sent to the Lincoln Police in early May 2018,
which stated Colby Hale, and not Palmer, was the individual who tested the solutions. Thus, Say
contended that the wet bath simulator solutions used to test the DataMaster were not accompanied
by valid certificates of analysis, as required under 177 Neb. Admin. Code, ch. 1, § 008.04A (2016).
A hearing was held on Say’s motion to suppress in August 2018. At the hearing, the State
adduced testimony from Kayla Puhrmann, a maintenance officer for the Lincoln Police
Department who held a permit to operate the DataMaster used to test Say’s BAC. Puhrmann
testified that the DataMaster was checked on May 25, 2017, and June 21, 2017, and was working
correctly on both occasions. As a result of those tests, Puhrmann opined that the DataMaster was
working properly when it was used to test Say’s BAC. She testified that certificates of analysis are
sent from the company which provides the wet bath simulator solutions. Puhrmann indicated that
the amended certificates of analysis were sent after the solutions were received by the police
department. The only difference between the original certificates of analysis and the amended
certificates of analysis was that the original certificates were signed by Palmer, and the amended
certificates were signed by Hale.
Puhrmann opined that the fact that a different tester signed the amended certificates of
analysis did not change her opinion that the DataMaster was working properly when it was used
to test Say’s BAC. She indicated that the same simulator solutions were used across all four
DataMaster machines operated by the Lincoln Police Department, and all tested within the
acceptable range of the target value of the solution. Additionally, the DataMaster was tested against
its own internal settings, and again tested within the appropriate range of error. Puhrmann admitted
on cross-examination that part of the maintenance of the DataMaster machines was relying on the
wet bath simulator solutions to test the internal settings of the machines.
Following the hearing, the district court overruled Say’s motion to suppress. The court
determined that the defect in the initial certificates of analysis was a technique, as defined by 177
Neb. Admin. Code, ch. 1, § 001.21 (2016), and not a method; therefore, the defect affected the
weight and credibility of the test, and not its admissibility. The court found that because there was
sufficient evidence to demonstrate that the DataMaster was working properly when it tested Say’s
BAC the results were admissible.
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A bench trial was held in October 2018. At trial, the State adduced testimony from Grant
Powell, a Lincoln Police officer in charge of maintaining the DataMaster machines. Powell
described how the DataMaster tested a subject’s breath. He explained that the DataMaster
undergoes regularly scheduled testing, which is required under Title 177 of the Nebraska
Administrative Code, and described the testing and when it was performed. After completing the
second round of tests of the Datamasters, Powell was made aware that certificates of analysis
which were initially sent with the solutions were not signed by the person who tested the solution.
Powell received amended certificates of analysis in early May 2018. He confirmed that the only
difference between the certificates of analysis was the name of the tester and stated that difference
did not alter his opinion that the DataMaster was working properly when it was used to test Say’s
BAC on May 28, 2017.
Following the testimony, the court found Say guilty of operating a motor vehicle while
under the influence with a BAC of 0.15 of one gram or more by weight of alcohol per 210 liters
on his breath. The court received evidence indicating that Say had two prior DUI convictions, and
found that the present offense was his third DUI offense. The district court sentenced Say to 365
days in jail, 18 months of postrelease supervision, and suspended his license for 15 years. Say
timely appealed.
ASSIGNMENTS OF ERROR
Say assigns, restated, that the district court erred in (1) overruling his motion to suppress,
(2) determining there was sufficient evidence to find him guilty of DUI, and (3) imposing an
excessive sentence.
STANDARD OF REVIEW
A trial court’s ruling on a motion to suppress evidence, apart from determinations of
reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless
searches, will be upheld unless its findings of fact are clearly erroneous. State v. Manning, 263
Neb. 61, 638 N.W.2d 231 (2002).
The meaning and interpretation of statutes and regulations are questions of law which an
appellate court resolves independently of the lower court’s conclusion. State v. McIntyre, 290 Neb.
1021, 863 N.W.2d 471 (2015).
In reviewing a sufficiency of the evidence claim, the relevant question for an appellate
court 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. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
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ANALYSIS
Motion to Suppress.
Say argues that the district court erred in overruling his motion to suppress his chemical
breath test results. He specifically argues that the State failed to establish the foundational
requirement that the chemical breath test was conducted under the methods required by DHHS.
The four foundational elements which the State must establish for the admissibility of a
breath test in a DUI prosecution are as follows: (1) that the testing device was working properly at
the time of the testing, (2) that the person administering the test was qualified and held a valid
permit, (3) that the test was properly conducted under the methods stated by the DHHS, and (4)
that all other statutes were satisfied. State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017). In his
motion to suppress, and on appeal, Say contends that the third foundational element was not met.
Title 177 of the Nebraska Administrative Code is the governing DHHS regulation on this
issue. Say asserts that the State did not comply with 177 Neb. Admin. Code, ch. 1, § 008.04 (2016).
Section 008.04A states that the wet bath simulator solution or dry gas standard used to calibrate
the DataMaster must be accompanied by a certificate of analysis, which must include, among other
things, the name of the tester of the solution, and a signature of the responsible individual for the
solution. Say argues that because, at the time of his breath test, the certificates of analysis
erroneously identified the individual who tested the simulator solutions, the breath test results are
inadmissible. We disagree.
The Nebraska Supreme Court recently addressed whether a defendant was entitled to a new
trial on the basis of newly discovered evidence which involved similarly defective certificates of
analysis. See State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020). In Krannawitter, the
appellant was convicted of aggravated DUI, third offense. Id. Following her trial, it was discovered
that although the original certificates of analysis which accompanied the wet bath simulator
solution used in the DataMaster to test her BAC were signed by Palmer, amended certificates
received after trial verified Hale as the tester. Id. Appellant filed a motion for a new trial based on
the defective certificates of analysis, which was denied by the district court. Id. The district court
found that the amended certificates of analysis were not newly discovered evidence and that even
if they were, the defect in the original certificates would not have rendered the breath test
inadmissible. Id. Krannawitter appealed, and the Supreme Court affirmed. Id.
In reaching its decision, the Krannawitter court determined that the district court erred in
ruling that the amended certificates were not newly discovered evidence; however, it affirmed the
denial of the motion for new trial because had the certificates been offered at trial, the result of
that trial would not have been substantially different. Id. In reaching its decision, it addressed the
same issue that is presently before this court: did the defect in the original certificates render the
chemical breath test results inadmissible for lack of foundation? It concluded that it did not,
stating:
In addition to contributing to the evidence showing that the original certificates were
incorrect, the amended certificates were independent foundation evidence supporting the
admission of those results. And in addition to even these certificates, there was other
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evidence presented at the hearing on the amended motion for new trial that supported the
admissibility of the results.
Id. at 77, 939 N.W.2d at 344.
Although the procedural posture of the case before us differs from that in Krannawitter,
the question is the same. Accordingly, we follow the Supreme Court’s analysis. In the present case,
the amended certificates of analysis were received into evidence at both the hearing on the motion
to suppress and at trial. They provided independent foundational evidence which supported the
admission of Say’s chemical breath test results. Additionally, there was other evidence supporting
the admissibility of Say’s breath test consisting of Powell’s testimony that the DataMaster was
tested on May 25, 2017, and again on June 21, and determined to be working properly and that all
four DataMaster machines operated by the Lincoln Police Department tested within the acceptable
margin of error. Therefore, the deficiency in the original certificates of analysis did not render
Say’s chemical breath test results inadmissible and the court did not err in refusing to suppress
them.
Sufficiency of Evidence.
Say argues that the district court erred in finding that there was sufficient evidence to find
him guilty of DUI. We disagree.
Say’s argument is premised on his previous assertion that the results of his chemical breath
test should have been suppressed. As stated above, however, the district court properly admitted
the results into evidence. It revealed that he had a BAC of 0.264. Say was convicted under
§ 60-6,196 and § 60-6,197.03(6) which makes it unlawful for a person to operate a motor vehicle
when the person has a concentration of .08 of 1 gram or more by weight of alcohol per 210 liters
of his or her breath. Because Say’s breath test revealed he had a BAC of 0.264, there was sufficient
evidence to convict him of DUI, greater than 0.15. The evidence further supports that Say had two
prior DUI convictions. Thus, there is sufficient evidence demonstrating that the present offense
was Say’s third DUI conviction.
Excessive Sentence.
Finally, Say argues that the district court abused its discretion and imposed an excessive
sentence. We disagree.
An abuse of discretion in imposing a sentence occurs when a sentencing court’s reasons or
rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result.
State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017). When imposing a sentence, a sentencing
judge should customarily consider the defendant’s (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime. State v. Mora, 298 Neb. 185, 903
N.W.2d 244 (2017). However, the sentencing court is not limited to any mathematically applied
set of factors. Id. The appropriateness of a sentence is necessarily a subjective judgment and
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includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. Id.
Say was convicted of DUI, more than 0.15, with two prior convictions, in violation of
§ 60-6,196 and § 60-197.03(6), a Class IIIA felony. Class IIIA felonies carry a maximum sentence
of 3 years’ imprisonment and 18 months’ postrelease supervision, there is not a minimum sentence;
however, if a term of imprisonment is imposed, 9 months’ postrelease supervision must also be
imposed. Neb. Rev. Stat. § 28-105 (Reissue 2016). Therefore, Say’s sentence of 365 days’
imprisonment and 18 months’ postrelease supervision was within the statutory guidelines for his
offense. Nevertheless, Say asserts that his sentence was excessive because the district court did
not consider his hardworking nature, social background, or the length of time between his first two
DUIs and his present offense.
The record indicates that the district court did not abuse its discretion in sentencing Say.
Prior to announcing its sentence, the court noted that it considered the information contained in
the presentence investigation report (PSR), as well as the circumstances of his offense, his
character and condition, and his prior offenses. Say’s PSR indicates that he has worked at the same
job since 2010, and that he leaves 2 hours early for his job to accommodate for travel. Thus, the
court was aware of Say’s employment and his dedication to his job.
Further, Say’s PSR details his social background. According to his PSR, Say is married
and has two children, aged 13 and 6. Moreover, the PSR details his relationship with his friends,
whom Say states do not use alcohol or drugs. The PSR also notes that he spent 20 years in a refugee
camp prior to moving to the United States. This information reflects Say’s social background, and
therefore was properly considered by the court prior to imposing its sentence.
Finally, the PSR details Say’s criminal history. He received his first DUI offense in 2010,
although he was convicted in 2011. Following this conviction, he initially received probation;
however, his probation was revoked and he spent 7 days in jail. His second DUI conviction
occurred in 2011, and he was sentenced to 30 days of house arrest. In addition to his two previous
DUI convictions, Say has received citations for disturbing the peace and hunting during closed
season. Thus, the district court was aware of the gap between Say’s first two DUI convictions, and
the present offense, which occurred in 2017.
Based upon our review of the record, the district court took the appropriate factors into
consideration in sentencing Say. It cannot be said that the court abused its discretion in sentencing
Say to 365 days’ imprisonment, 18 months’ postrelease supervision, and suspending his license
for 15 years.
CONCLUSION
The district court did not err in admitting the results of Say’s chemical breath test; therefore,
the evidence was sufficient to support his conviction. Further, the court did not impose an
excessive sentence on Say. Accordingly, we affirm his conviction and sentence.
AFFIRMED.
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