State v. McCumber , 295 Neb. 941 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
02/24/2017 09:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. McCUMBER
Cite as 295 Neb. 941
State of Nebraska, appellee, v.
R icky J. McCumber, appellant.
___ N.W.2d ___
Filed February 24, 2017. No. S-16-446.
1. Constitutional Law: Statutes: Judgments: Appeal and Error. The
constitutionality and construction of a statute are questions of law,
which an appellate court resolves independently of the conclusion
reached by the lower court.
2. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal 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 indepen-
dently of the trial court’s determination.
3. Constitutional Law: Statutes: Presumptions. A statute is presumed to
be constitutional, and all reasonable doubts are resolved in favor of its
constitutionality.
4. Constitutional Law: Statutes: Courts: Judgments. All challenges
to the constitutionality of a statute should be heard by a full Supreme
Court, and a supermajority is required to declare any statute unconstitu-
tional, without regard to whether the challenge is facial or as-applied.
5. Constitutional Law: Statutes. The constitutionality of a statute pre­
sents a question of law.
6. Constitutional Law: Statutes: Standing: Proof. Standing to challenge
the constitutionality of a statute under the federal or state Constitution
depends upon whether one is, or is about to be, adversely affected by
the language in question, and to establish standing, the contestant must
show that as a consequence of the alleged unconstitutionality, he or she
is, or is about to be, deprived of a protected right.
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7. Constitutional Law: Statutes: Words and Phrases. A challenge to a
statute asserting that no valid application of the statute exists because it
is unconstitutional on its face is a facial challenge.
8. Constitutional Law: Statutes: Proof. A plaintiff can only succeed in a
facial challenge by establishing that no set of circumstances exists under
which the act would be valid, i.e., that the law is unconstitutional in all
of its applications.
9. Constitutional Law: Statutes: Pleadings: Waiver. In order to bring
a constitutional challenge to the facial validity of a statute, the proper
procedure is to file a motion to quash, and all defects not raised in a
motion to quash are taken as waived by a defendant pleading the gen-
eral issue.
10. Constitutional Law: Statutes. A motion to quash is the proper method
to challenge the constitutionality of a statute, but it is not used to ques-
tion the constitutionality of a statute as applied.
11. Constitutional Law: Statutes: Pleas. Challenges to the constitutional-
ity of a statute as applied to a defendant are properly preserved by a plea
of not guilty.
12. Constitutional Law: Search and Seizure. The Fourth Amendment
to the U.S. Constitution guarantees against unreasonable search and
seizure.
13. Appeal and Error. An appellate court does not consider errors which
are argued but not assigned.
Appeal from the District Court for Wayne County: James
G. Kube, Judge. Affirmed in part, and in part vacated and
remanded with directions.
George T. Babcock, of Law Offices of Evelyn N. Babcock,
for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
I. INTRODUCTION
Ricky J. McCumber appeals following his convictions and
sentences for refusing to submit to a chemical test, refusing to
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STATE v. McCUMBER
Cite as 295 Neb. 941
submit to a preliminary breath test (PBT), and driving with-
out a license. He challenges the constitutionality of Neb. Rev.
Stat. §§ 60-6,197 (Cum. Supp. 2016) and 60-6,197.04 (Reissue
2010). In accordance with Birchfield v. North Dakota, ___ U.S.
___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), we conclude
that § 60-6,197 is unconstitutional as applied to McCumber.
However, we reject McCumber’s remaining assignments of
error. Consequently, we affirm in part, and in part vacate and
remand to the district court with directions.
II. BACKGROUND
1. Pretrial Proceedings
On November 22, 2013, the State charged McCumber with
aggravated driving under the influence (DUI), refusing to sub-
mit to a chemical test, refusing to submit to a PBT, and driv-
ing without a license. (The State ultimately dismissed the DUI
charge on its own motion.)
Prior to trial, McCumber filed a motion to quash the charges
for refusing to submit to a chemical test under § 60-6,197 and
refusing to submit to a PBT under § 60-6,197.04. He asserted
that both statutes were facially invalid in that they violated the
U.S. and Nebraska Constitutions by conditioning the privilege
of driving a motor vehicle upon drivers’ consenting to warrant-
less searches.
The district court held a hearing on the motion to quash
and denied it with respect to both offenses. The district court
found that McCumber had failed to meet his burden to estab-
lish that either statute was facially invalid. That is, McCumber
failed to demonstrate that there was “no set of circumstances
under which the statutes he addresses would be valid.” The
district court did not address Birchfield v. North Dakota,
supra, or our opinion in State v. Cornwell, 294 Neb. 799, 884
N.W.2d 722 (2016) (applying Birchfield and rejecting facial
challenges to consent and refusal statutes), given that neither
case had been decided at the time of the district court’s ruling
in this case.
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STATE v. McCUMBER
Cite as 295 Neb. 941
Prior to trial, McCumber also filed three motions to sup-
press. The first motion sought suppression of any and all items
seized from McCumber, his vehicle, or any other place in
which McCumber had an expectation of privacy. McCumber
alleged, among other things, (1) that the items were seized
without reasonable suspicion or probable cause; (2) that the
search and seizure violated McCumber’s rights under the 4th,
5th, and 14th Amendments to the U.S. Constitution and Neb.
Const. art. I, § 7; (3) that the search and seizure were not inci-
dent to a lawful arrest; and (4) that the search and seizure were
not conducted pursuant to a lawfully issued warrant.
In the second motion to suppress, McCumber requested
that the district court suppress any and all pretrial admis-
sions or statements made by McCumber to law enforcement
personnel. McCumber asserted that he did not waive his
rights knowingly, intelligently, and voluntarily and that his
statements were obtained in violation of the 4th through 6th
and 14th Amendments to the U.S. Constitution and Neb.
Const. art. I, §§ 7 and 12, and in violation of his rights under
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
The third motion sought to suppress all evidence seized
from McCumber, including any visual and auditory observa-
tions made by law enforcement personnel, because they lacked
probable cause to stop and detain him.
2. Suppression Hearing
At the hearing on the motions to suppress, McCumber’s
counsel primarily argued that in light of the U.S. Supreme
Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133
S. Ct. 1552, 185 L. Ed. 2d 696 (2013), it is unconstitutional
for the State to criminalize his refusal to submit to unlawful
warrantless searches in the form of the PBT and a chemical
blood test or for the State to use such evidence against him
at trial.
Officer Dylan Jensen of the Wayne Police Department tes-
tified that on June 8, 2013, at about 6:55 p.m., he received
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Cite as 295 Neb. 941
information from a Nebraska State Patrol officer that
McCumber’s pickup was parked outside a local business. The
State Patrol officer informed Officer Jensen that based on a
citation he had issued previously, he knew that McCumber
did not possess a valid Nebraska operator’s license. Officer
Jensen contacted dispatch and confirmed that McCumber’s
license was expired. Officer Jensen then printed off a picture
of McCumber and drove to the business where McCumber’s
empty pickup was parked.
According to Officer Jensen, soon after he arrived,
McCumber entered his pickup, engaged in a cell phone call,
and began driving. Officer Jensen followed the pickup in his
patrol car. After driving for a few blocks, McCumber pulled
over to park on the street, swiftly exited the pickup, and started
walking away, at which point Officer Jensen pulled up next
to McCumber and told McCumber that he needed to speak
with him.
Officer Jensen testified that when he asked for identification,
McCumber provided an expired operator’s license. Officer
Jensen stated that as he wrote McCumber a citation for driving
without a valid operator’s license, he noticed that McCumber
smelled of alcohol; had watery, bloodshot eyes and slurred
speech; was having difficulty balancing; and repeatedly asked
the same questions.
Officer Jensen testified that he asked McCumber if he had
been drinking and that McCumber admitted he had consumed
two alcoholic beverages just before seeing Officer Jensen.
Officer Jensen asked McCumber to perform field sobriety tests,
which McCumber refused to do. Next, Officer Jensen asked
McCumber to submit to a PBT. McCumber refused.
Officer Jensen testified that at that point, he arrested
McCumber for DUI and refusing to submit to a PBT.
Subsequently, Officer Jensen transported McCumber to a hos-
pital for a blood draw. Officer Jensen read McCumber the
postarrest chemical test advisement, a copy of which was
received into evidence. McCumber refused to submit to the
blood draw.
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STATE v. McCUMBER
Cite as 295 Neb. 941
Officer Jensen transported McCumber to the police depart-
ment for booking and ultimately cited him for DUI, refusal
to submit to a chemical test, and refusal to submit to a PBT.
Officer Jensen acknowledged that a warrant was not obtained
before taking McCumber to the hospital for the blood draw. He
also acknowledged that it would have been feasible to obtain a
warrant, but that he opted not to do so because he did not think
a warrant was necessary. Officer Jensen did not recall reading
McCumber his Miranda rights.
Following the hearing, the district court denied McCumber’s
motions to suppress.
Specifically, the district court found that Officer Jensen
had probable cause to stop and detain McCumber. The dis-
trict court further declined to suppress any of McCumber’s
statements, finding them all to be voluntary and lawfully
obtained with no violation of McCumber’s Miranda rights
or the 4th through 6th or 14th Amendments to the U.S.
Constitution. Regarding McCumber’s challenge to Nebraska’s
statutory implied consent scheme, the district court found
that Nebraska’s implied consent law penalizes a suspect for
refusing to submit to a chemical test only if there were “rea-
sonable grounds” to require the test and, accordingly, that the
statute authorizes a search that would be facially reasonable
under the Fourth Amendment. Finally, the district court noted
that in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552,
185 L. Ed. 2d 696 (2013), the U.S. Supreme Court cited with
approval the application of implied consent laws in the United
States. The district court’s order did not specifically address
Nebraska’s PBT statute.
3. Stipulated Bench Trial
and Verdict
After the district court denied McCumber’s pretrial motions,
the State dismissed the DUI charge and the parties agreed to
proceed with a stipulated bench trial on the three remaining
charges of refusing to submit to a chemical test, refusing to
submit to a PBT, and driving without a license.
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STATE v. McCUMBER
Cite as 295 Neb. 941
The State’s evidence consisted of a copy of the prelimi-
nary hearing from county court, the postarrest chemical test
advisement form, DVD’s of McCumber’s interactions with
law enforcement personnel, a copy of the vehicle registra-
tion for McCumber’s pickup, a copy of the citation issued
to McCumber, a copy of the Department of Motor Vehicles’
report of the incident, and a transcript of the suppression hear-
ing. The district court received this evidence without objection,
except for McCumber’s renewal of his motion to quash and
motions to suppress.
The district court found McCumber guilty of all three
remaining charges. After an enhancement hearing, the district
court imposed a $100 fine for refusing to submit to a PBT and
sentenced McCumber to concurrent terms of 24 months’ proba-
tion for the two remaining offenses of driving without a license
and refusing to submit to a chemical test. This appeal followed.
III. ASSIGNMENTS OF ERROR
McCumber assigns and argues that the district court erred
by (1) determining that § 60-6,197 (the chemical test implied
consent statute) is valid, facially and as applied, and does
not violate the 4th, 5th, and 14th Amendments to the U.S.
Constitution and article I, §§ 7 and 12, of the Nebraska
Constitution; (2) determining that Nebraska statutes may con-
dition the privilege of driving upon the waiver of rights
guaranteed by the 4th, 5th, and 14th Amendments to the
U.S. Constitution and article I, §§ 7 and 12, of the Nebraska
Constitution, to withhold consent to a warrantless search of
one’s blood; and (3) determining that § 60-6,197.04 (the PBT
implied consent statute) was constitutionally valid, facially
and as applied, and did not conflict with the 4th, 5th, and 14th
Amendments to the U.S. Constitution, and article I, §§ 7 and
12, of the Nebraska Constitution.
IV. STANDARD OF REVIEW
[1] The constitutionality and construction of a stat-
ute are questions of law, which an appellate court resolves
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independently of the conclusion reached by the lower court.
State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).
[2] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. State v. Rothenberger, 294 Neb. 810,
885 N.W.2d 23 (2016).
V. ANALYSIS
1. Constitutional Challenge
to Chemical Test
McCumber contests his conviction and sentence for refusal
to submit to a chemical test for alcohol. Nebraska’s implied
consent statute for chemical testing, § 60-6,197(1), provides:
Any person who operates or has in his or her actual
physical control a motor vehicle in this state shall be
deemed to have given his or her consent to submit to
a chemical test or tests of his or her blood, breath, or
urine for the purpose of determining the concentration of
alcohol or the presence of drugs in such blood, breath,
or urine.
And any person who refuses to submit to a test could be
found guilty of a crime and, upon conviction, punished as
provided in Neb. Rev. Stat. §§ 60-6,197.02 to 60-6,197.08
(Reissue 2010 & Cum. Supp. 2016). See § 60-6,197(3).
McCumber contends that the district court erred by determin-
ing that Nebraska statutes criminalizing refusal to submit to
a warrantless search of one’s blood are valid, facially and as
applied, and do not violate the 4th, 5th, and 14th Amendments
to the U.S. Constitution and article I, §§ 7 and 12, of the
Nebraska Constitution.
[3-5] We begin by noting that a statute is presumed to be
constitutional, and all reasonable doubts are resolved in favor
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of its constitutionality. State v. Harris, 284 Neb. 214, 817
N.W.2d 258 (2012). All challenges to the constitutionality
of a statute should be heard by a full Supreme Court, and a
supermajority is required to declare any statute unconstitu-
tional, without regard to whether the challenge is facial or
as-applied. Neb. Ct. R. App. P. § 2-109(E) (rev. 2014). The
constitutionality of a statute presents a question of law. State v.
Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
[6] Standing to challenge the constitutionality of a statute
under the federal or state Constitution depends upon whether
one is, or is about to be, adversely affected by the language in
question, and to establish standing, the contestant must show
that as a consequence of the alleged unconstitutionality, he or
she is, or is about to be, deprived of a protected right. State
v. Cushman, 256 Neb. 335, 589 N.W.2d 533 (1999). With
McCumber having been convicted and sentenced pursuant to
§ 60-6,197, he has standing.
[7-11] A challenge to a statute asserting that no valid
application of the statute exists because it is unconstitutional
on its face is a facial challenge. State v. Cornwell, 294 Neb.
799, 884 N.W.2d 722 (2016). A plaintiff can only succeed
in a facial challenge by establishing that no set of circum-
stances exists under which the act would be valid, i.e., that
the law is unconstitutional in all of its applications. Id. In
order to bring a constitutional challenge to the facial validity
of a statute, the proper procedure is to file a motion to quash,
and all defects not raised in a motion to quash are taken as
waived by a defendant pleading the general issue. Id. But it
is not used to question the constitutionality of a statute as
applied. Id. Instead, challenges to the constitutionality of a
statute as applied to a defendant are properly preserved by
a plea of not guilty. Id. Here we have both a facial and an
as-applied challenge.
(a) Facial Challenge
McCumber argues that “[b]ecause [§] 60-6,197 compels
submission to a blood test, in all cases, it is facially invalid,”
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by violating the Fourth Amendment as set forth by Birchfield
v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed.
2d 560 (2016). We note that Birchfield had not been released
prior to the trial or sentencing in this case. But with Birchfield
pronouncing a new constitutional rule, it applies retroactively
to any case on direct appeal. See Griffith v. Kentucky, 479 U.S.
314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987).
[12] The Fourth Amendment to the U.S. Constitution guar-
antees against unreasonable search and seizure. It provides in
part that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause.” Thus, the U.S. Supreme Court
has determined that “‘[w]here a search is undertaken by law
enforcement officials to discover evidence of criminal wrong-
doing, . . . reasonableness generally requires the obtaining of
a judicial warrant.’” Riley v. California, ___ U.S. ___, 134 S.
Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014), quoting Vernonia
School Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132
L. Ed. 2d 564 (1995). However, a warrantless search of the
person has been found reasonable if it falls within a recognized
exception. Riley v. California, supra; Missouri v. McNeely, ___
U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013); Arizona
v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485
(2009); Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826,
16 L. Ed. 2d 908 (1966).
Prior to the opinion in Birchfield v. North Dakota, supra,
the U.S. Supreme Court had reviewed the warrantless taking
of a blood test sample in Schmerber v. California, supra, and
found that the exigent circumstance exception may constitute
grounds for a warrantless search when an emergency leaves
police insufficient time to seek a warrant. In Schmerber, the
Court found that drunk driving may represent an exigent
circumstance if an officer reasonably believed that he was
confronted with an emergency that left no time to seek a war-
rant because “the percentage of alcohol in the blood begins
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to diminish shortly after drinking stops.” 384 U.S. at 770.
But the Court also emphasized that it based its holding on
the specific facts of the case. Later, the Court affirmed the
case-by-case approach to the exigent circumstance excep-
tion and held that the natural dissipation of alcohol from the
bloodstream does not always constitute an exigency justify-
ing the warrantless taking of a blood sample. See Missouri v.
McNeely, supra.
The Court in Birchfield noted that the taking of a blood sam-
ple or the administration of a breath test is a search within the
Fourth Amendment, which in most instances requires a warrant
unless there is an exception. In Birchfield, the Court consid-
ered whether the search incident to arrest exception applied to
breath and blood tests. The search incident to arrest exception
allows for the warrantless search of a person arrested for the
purposes of protecting the arresting officers and safeguarding
any evidence of the offense of arrest that an arrestee might
conceal or destroy. See, Riley v. California, supra; Arizona v.
Gant, supra; Schmerber v. California, supra.
The discussion in Birchfield v. North Dakota, ___ U.S. ___,
136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), contrasted the rela-
tive levels of intrusiveness of breath and blood tests. The Court
found that a breath test did not “‘implicat[e] significant privacy
concerns’” because the physical intrusion is negligible and is
capable of revealing only how much alcohol is in the subject’s
breath. Id., 136 S. Ct. at 2176. Further, the Court observed that
participation in the test was “not an experience that is likely
to cause any great enhancement in the embarrassment that is
inherent in any arrest.” Id., 136 S. Ct. at 2177. The Court drew
an opposite conclusion in regard to a blood test, which requires
a physical intrusion that is “significantly more intrusive than
blowing into a tube.” Id., 136 S. Ct. at 2178. Nor can the State
rely upon implied consent laws to obtain a warrantless blood
test. Birchfield v. North Dakota, supra.
Ultimately, in Birchfield, the Court concluded that a breath
test and a blood test had differing compelling interests under
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the Fourth Amendment. As a result, law enforcement officials
do not need a warrant to conduct a breath test pursuant to
a search incident to a lawful arrest for drunk driving, but a
warrant is required for a blood test. See Birchfield v. North
Dakota, supra.
Here, in addressing McCumber’s facial challenge to the
constitutionality of § 60-6,197, we must determine whether
no set of circumstances exists under which § 60-6,197 would
be valid in view of the decisions by the U.S. Supreme Court
and Nebraska law. See State v. Cornwell, 294 Neb. 799,
884 N.W.2d 722 (2016). In part, we have already answered
that question. In Cornwell, we rejected a facial challenge to
§ 60-6,197. We determined that a warrantless breath test is
reasonable pursuant to Birchfield and does not violate the
Fourth Amendment or Neb. Const. art. I, § 7, which this court
has found does not offer any more protection than the U.S.
Constitution. See State v. Havlat, 222 Neb. 554, 385 N.W.2d
436 (1986). Thus, in Cornwell, we have previously applied
Birchfield and found that § 60-6,197 is not unconstitutional on
its face in allowing breath tests, since there are circumstances
under which that section is valid.
Furthermore, in regard to blood tests, Birchfield points to
two circumstances that defeat McCumber’s facial challenge.
First, Birchfield noted that there are instances where a drunk
driver could behave in such a manner as to refuse to submit
to a blood test even when facing a valid warrant. The Court
in Birchfield noted that some officials are reluctant to forc-
ibly draw blood where the drunk driver creates a risk to law
enforcement or medical personnel, which, in turn, could lead
to a charge of refusal to submit to a chemical test. In this case,
we are not called upon to determine whether such a situation
represents a refusal, but it certainly would constitute another
circumstance wherein § 60-6,197 would be valid. Second,
exigent circumstances may present a situation whereby a war-
rantless blood test could be authorized. See Schmerber v.
California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908
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(1966). Again, this issue, which would be decided on a case-
by-case basis pursuant to § 60-6,197, is not before us.
Therefore, McCumber has not shown that § 60-6,197 is
unconstitutional on its face, since circumstances exist under
which refusal to submit to a blood test would be valid.
(b) As-Applied Challenge
McCumber argues that as applied,
[§] 60-6,197 violated his Fourth Amendment rights since
he was directed to submit to a warrantless blood draw;
no exception to the warrant requirement compelled his
submission to a blood draw; and the State criminalized
the assertion of his Fourth Amendment right to withhold
consent to the warrantless search.
Brief for appellant at 29. Certainly, it is true that the State did
not seek a warrant for McCumber’s blood test, that there were
no exigent circumstances set forth for a warrantless search, and
that the State criminalized his refusal to consent to the blood
test. Therefore, the issue is whether the State could demand
a blood test as a search incident to a lawful arrest for drunk
driving, as the district court found. And on this issue, the State
concedes that in view of the U.S. Supreme Court’s decision
in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160,
195 L. Ed. 2d 560 (2016), Ҥ 60-6,197 is unconstitutional as
applied to McCumber, and . . . his conviction and sentence
for refusing to submit to a chemical blood test in violation of
§ 60-6,197 should therefore be vacated.” Brief for appellee at
11. We agree with the State.
In this instance, without a warrant, nor exigent circum-
stance, the State could only rely upon the exception of a war-
rantless search incident to a lawful arrest for drunk driving in
order to demand a blood test from McCumber. With the U.S.
Supreme Court in Birchfield categorically finding that the
exception of a warrantless search incident to a lawful arrest
for drunk driving is unconstitutional in regard to a blood
test, even under an implied consent law, we find § 60-6,197
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is unconstitutional as applied to McCumber. Consequently,
we hereby vacate McCumber’s conviction and sentence for
refusing to submit to a chemical blood test in violation of
§ 60-6,197.
(c) Adverse Evidentiary Inference
[13] Further, McCumber argued in his brief that “[b]y
allowing admission of [McCumber’s] testimonial refusal to
submit a blood test that the officer could not lawfully com-
pel, [§] 60-6,197(6), facially and as applied, offends both the
Fourth and Fifth Amendments and their Nebraska counter-
parts.” Brief for appellant at 34. However, McCumber did not
assign this proposition as error. And an appellate court does
not consider errors which are argued but not assigned. State v.
Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
2. Constitutional Challenge
to PBT
Lastly, McCumber claims that the district court erred by
determining that § 60-6,197.04, Nebraska’s PBT statute, was
constitutionally valid, facially and as applied, and did not
conflict with the 4th, 5th, and 14th Amendments to the U.S.
Constitution and article I, §§ 7 and 12, of the Nebraska
Constitution. Having been convicted and sentenced pursuant to
§ 60-6,197.04, McCumber has standing to question its constitu-
tionally, and we consider the issue in accordance with the prin-
ciples of constitutional analysis set forth above. See, State v.
Boche, 294 Neb. 912, 885 N.W.2d 523 (2016); State v. Harris,
284 Neb. 214, 817 N.W.2d 258 (2012); State v. Cushman, 256
Neb. 335, 589 N.W.2d 533 (1999).
Section 60-6,197.04 provides:
Any peace officer who has been duly authorized to
make arrests for violation of traffic laws of this state or
ordinances of any city or village may require any person
who operates or has in his or her actual physical con-
trol a motor vehicle in this state to submit to a [PBT]
for alcohol concentration if the officer has reasonable
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Cite as 295 Neb. 941
grounds to believe that such person has alcohol in his
or her body, has committed a moving traffic violation,
or has been involved in a traffic accident. Any person
who refuses to submit to such [PBT] or whose [PBT]
results indicate an alcohol concentration in violation of
section 60-6,196 shall be placed under arrest. Any person
who refuses to submit to such [PBT] shall be guilty of a
Class V misdemeanor.
McCumber asserts that § 60-6,197.04 is facially invalid
because it allows a search, compelled on pain of criminal
penalty, without reasonable suspicion of the commission of
a crime for which evidence is sought or any showing that
an exception to the warrant requirement applies. Likewise,
he argues that § 60-6,197.04, as applied to him, violated his
Fourth Amendment right to be free from unreasonable searches
and seizures.
We dealt with a similar argument in State v. Prescott, 280
Neb. 96, 784 N.W.2d 873 (2010). In that case, the defendant
contended that § 60-6,197.04 was unconstitutional because it
did not require probable cause to administer a PBT. In finding
that § 60-6,197.04 was constitutional as applied and on its face,
we distinguished a PBT from a formal arrest and concluded
that the administration of a PBT need not be supported by
probable cause. We explained:
[W]e [have] noted that . . . field sobriety tests were more
akin to a Terry stop as authorized by Terry v. Ohio, [392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),] and were
reasonable so long as an officer could point to “‘specific
articulable facts’” supporting the stop and limited intru-
sion. In this case, we agree that the administration of a
PBT is more in line with field sobriety testing and a Terry
stop than it would be with a formal arrest. . . .
. . . [A]n officer is reasonable in administering a PBT
if he can point to specific, articulable facts indicating that
an individual has been driving [while] under the influence
of alcohol.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. McCUMBER
Cite as 295 Neb. 941
State v. Prescott, 280 Neb. at 110-11, 784 N.W.2d at 885-86.
Here, Officer Jensen cited specific articulable facts to sup-
port administering the PBT: He witnessed McCumber driving
and immediately afterward observed unmistakable signs that
McCumber was under the influence of alcohol. Further, with
§ 60-6,197.04 mandating only a PBT, as opposed to a search
incident to a lawful arrest, the opinion in Birchfield v. North
Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560
(2016), does not affect our holding in Prescott. Thus, we find
that § 60-6,197.04 is constitutionally valid, facially and as
applied to McCumber, and does not conflict with the 4th, 5th,
and 14th Amendments to the U.S. Constitution, and article I,
§§ 7 and 12, of the Nebraska Constitution.
VI. CONCLUSION
We find that § 60-6,197 is unconstitutional as applied to
McCumber for his conviction on count III, refusing to submit
to a chemical blood test, in violation of § 60-6,197, and said
conviction and sentence are hereby vacated. We find no merit
to McCumber’s remaining assignments of error, and the deci-
sion of the district court is affirmed as to those issues. In view
of our holding, and because the original sentencing order did
not separately state the sentence for each count, the district
court shall resentence McCumber on the remaining counts.
A ffirmed in part, and in part vacated
and remanded with directions.