State v. Jasa ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/09/2017 09:13 AM CST
- 822 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822State of Nebraska, appellee, v.
Jamos M. Jasa, appellant.
___ N.W.2d ___
Filed September 22, 2017. No. S-16-989.
1. 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.
2. Administrative Law: Statutes: Appeal and Error. The meaning and
interpretation of statutes and regulations are questions of law which an
appellate court resolves independently of the lower court’s conclusion.
3. Constitutional Law: Search and Seizure: Investigative Stops:
Arrests: Probable Cause. The Fourth Amendment guarantees the right
to be free of unreasonable search and seizure. This guarantee requires
that an arrest be based on probable cause and limits investigatory stops
to those made upon an articulable suspicion of criminal activity.
4. Criminal Law: Investigative Stops: Motor Vehicles: Police Officers
and Sheriffs. A traffic stop requires only that the stopping officer have
specific and articulable facts sufficient to give rise to a reasonable sus-
picion that a person has committed or is committing a crime.
5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. If an officer has probable cause to stop a traffic viola-
tor, the stop is objectively reasonable.
6. ____: ____: ____: ____. A traffic violation, no matter how minor, cre-
ates probable cause to stop the driver of a vehicle.
7. Judgments: Appeal and Error. Where the record adequately dem-
onstrates that the decision of a trial court is correct—although such
- 823 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822correctness is based on a ground or reason different from that assigned
by the trial court—an appellate court will affirm.
8. Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof.
The four foundational elements which the State must establish as a foun-
dation for the admissibility of a breath test in a driving under the influ-
ence 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 Department of Health and
Human Services, and (4) that all other statutes were satisfied.
9. Statutes. Statutory language is to be given its plain and ordinary
meaning.
10. Statutes: Legislature: Intent: Appeal and Error. An appellate court
will not look beyond a statute to determine the legislative intent when
the words are plain, direct, or unambiguous.
11. Appeal and Error. In appellate proceedings, the examination by the
appellate court is confined to questions which have been determined by
the trial court.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Brad Roth, of McHenry, Haszard, Roth, Hupp, Burkholder
& Blomenberg, P.C., L.L.O., 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.
INTRODUCTION
Following a jury trial, Jamos M. Jasa appeals his convic-
tion and sentence for aggravated driving under the influence
(DUI), third offense, a Class IIIA felony under Neb. Rev.
Stat. §§ 60-6,196 (Reissue 2010) and 60-6,197.03(6) (Cum.
Supp. 2014). Jasa challenges the order of the district court
for Lancaster County that denied his motion to suppress the
- 824 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822results of a chemical breath test. We conclude that the district
court did not err in finding that law enforcement (1) had rea-
sonable suspicion to initiate a traffic stop, (2) administered a
15-minute observation period prior to the chemical breath test
in accord­ance with title 177 of the Nebraska Administrative
Code, and (3) complied with Neb. Rev. Stat. § 60-6,199
(Reissue 2010) by allowing access to a telephone to arrange
independent testing. Therefore, we affirm.
BACKGROUND
On February 14, 2015, Jasa was the subject of a traffic stop,
which led to a DUI investigation and a chemical breath test
showing an alcohol concentration of .191 grams of alcohol per
210 liters of Jasa’s breath. The State charged Jasa pursuant to
§§ 60-6,196 and 60-6,197.03(6) with DUI, third offense, while
having a breath alcohol concentration of .15 grams of alcohol
per 210 liters of breath, or more.
Prior to trial, Jasa moved to suppress his chemical breath
test result on several grounds. In relevant part, he alleged
(1) that law enforcement officers lacked reasonable suspicion
or probable cause to stop his vehicle, making any evidence
obtained as a result of the stop inadmissible; (2) that the chemi-
cal breath test was not conducted in compliance with title 177
of the Nebraska Administrative Code, because law enforce-
ment officers failed to properly and continuously monitor him
for 15 minutes prior to the breath test; and (3) that Jasa was
prohibited from obtaining independent testing of his alcohol
concentration, which rendered his breath test result inadmis-
sible under § 60-6,199.
At the hearing on Jasa’s motion to suppress, the evidence
established that on February 14, 2015, shortly after mid-
night, Officers Kenneth Morrow and Jonathan Sears of the
Lincoln Police Department were on patrol together when they
received a dispatch about a vehicle that was “all over the
road” at First and West O Streets in Lincoln, Nebraska. The
dispatch center received the initial report from an employee
- 825 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822of Lincoln Fire and Rescue (LFR). The report originated from
LFR “Engine 3,” which is based at a firehouse near First and
West O Streets.
Morrow and Sears arrived in the area within a few minutes.
At approximately Third and West O Streets, they saw a pickup
that matched the description and the license plate number pro-
vided by LFR.
Morrow testified that they observed the pickup weaving
in its lane and saw both the front and rear driver’s side tires
completely cross over the dashed lane divider line. The district
court received into evidence Lincoln Mun. Code § 10.14.110
(1990), which prohibits a motorist’s vehicle from straddling the
lane line with its wheels for a distance greater than required to
safely change lanes.
Morrow testified that after seeing the pickup cross the lane
line with its driver’s side tires, he activated his cruiser camera,
which was able to “jump back . . . 10 seconds on the video.”
A copy of the resulting video was received at the suppression
hearing. Morrow testified that the video shows the pickup
weaving within its lane and then crossing the lane line. Due to
the quality of the video, lighting, and movement, the lane line
is difficult to discern during portions of the video; however,
it does appear that the pickup weaved in its lane and could
have briefly crossed the lane line with both driver’s side tires.
Morrow acknowledged that the quality of the video was “not
great,” but stated that from his perspective, he was able to see
the driver’s side tires cross the lane line. After perceiving this
traffic violation, the officers initiated a traffic stop and identi-
fied the pickup’s driver as Jasa.
Morrow testified that Jasa’s driving behaviors were con-
sistent with someone who is under the influence of alcohol
and that he administered field sobriety tests and a preliminary
breath test at the scene of the traffic stop. Jasa was ultimately
arrested for DUI.
While detained in the police cruiser, Jasa twice requested a
blood test. Morrow testified that the officers could have taken
- 826 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822Jasa to a hospital for a chemical blood test. Instead, the officers
transported Jasa to the Lancaster County jail for a chemical
breath test. They arrived at the jail at 1:04 a.m.
While Sears prepared for the breath test, Morrow accom-
panied Jasa to a different room where Jasa changed into a jail
uniform. Morrow observed Jasa for 15 minutes prior to the
chemical breath test, monitoring him for belching, vomiting,
or anything that would bring alcohol from his stomach to his
mouth and affect the accuracy of the test. Morrow testified
that he observed none of these behaviors.
Sears testified that he was aware that the 15-minute observa-
tion had taken place but that Morrow did not directly commu-
nicate with Sears about his observations. Sears explained that
sometimes, when two officers conduct a DUI investigation,
one officer carries out the observation period while the other
administers the chemical test, but that normally, the subject
sits beside the testing machine for the 15-minute observa-
tion period.
Morrow testified that he explained the chemical breath test
process to Jasa, and Sears testified that he, Sears, completed
the steps necessary to administer the test. At some point,
Morrow filled out “Attachment 16,” a “checklist technique
. . . approved and prescribed” by title 177 of the Nebraska
Administrative Code. The checklist requires the following
tasks: verify the testing instrument’s maintenance, “[o]bserve
the subject for 15 minutes prior to testing,” record the time
the observation began, attach a clean mouthpiece, verify that
a complete breath sample was obtained with no errors, and
indicate the alcohol content of the breath sample obtained. The
bottom of the form includes a line above the words “Permit
Holder.” Morrow checked the box next to each task on the
form, filled in the necessary information, and identified Sears
as the permit holder. Morrow testified that normally, the offi-
cer who administers the breath test is identified as the permit
holder. Morrow and Sears both had Class B permits to operate
the testing instrument.
- 827 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822Sears administered the chemical breath test at 1:22 a.m.
Both Morrow and Sears were present. The test indicated that
Jasa had a breath alcohol concentration of .191 grams of alco-
hol per 210 liters of breath.
Immediately after the chemical breath test, Morrow read
Jasa a “physician’s advisement,” which informed Jasa that
under § 60-6,199, he had a right to undergo independent test-
ing but would have to procure and pay for it himself. Morrow
further explained to Jasa that Jasa would have to ask someone
to come to the jail to perform an independent test. Jasa asked
how he could arrange such testing, and Morrow informed him
that he would be allowed to use the telephone and would have
to speak with the jail staff for further details. Additionally,
Morrow told Jasa that he would have to remain in jail until his
court date 3 days later.
Jasa was cited for aggravated DUI, third offense, a felony.
Morrow testified that Jasa had to be lodged in jail because his
offense was not bondable. Sears explained that the offense was
not bondable because Jasa was arrested during the weekend
and a judge could not set bond for several days.
Both Morrow and Sears testified that neither of them did
anything to inhibit Jasa’s ability to arrange independent test-
ing. Morrow stated that inmates at the Lancaster County jail
are allowed to make telephone calls and to have visitors. Both
officers testified that they could not recall anyone ever coming
to the jail to administer an independent blood test, but Morrow
pointed out that he did not “stick with the people down at the
jail” and that, in his role as a police officer, he would never
see an arrestee receiving a visitor and did not know how the
process worked.
Jasa testified that Morrow and Sears did not offer to trans-
port him to the hospital for a blood test or to have someone
come to the jail for a blood test, nor did they provide any
information that he could use to obtain a blood test. Jasa con-
firmed that he was told he could arrange blood testing on his
own, but said he had no idea whom to call or how to arrange
- 828 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822such testing at 2 a.m., especially since he is not from Lincoln.
However, Jasa acknowledged that he used to live in Lincoln
and had access to a telephone while he was in jail on the night
of his arrest.
Over the 31⁄2 days that Jasa spent in jail for the present
offense, he made 45 telephone calls. The evidence showed
that at 1:56 a.m. on the night of his arrest, he first called his
current attorney, but was unsuccessful in reaching him. Jasa
testified that he also called his brother and a friend several
times to attempt to arrange for bond so that he could obtain an
independent test upon his release and because, he testified, he
did not realize he was nonbondable until several hours after his
incarceration. Jasa acknowledged that, while in jail, he never
attempted to contact a physician, a hospital, or anyone else to
obtain a blood test.
Jasa testified that on the morning of the suppression hear-
ing, he called several places in Lincoln to inquire whether they
perform independent blood tests at the jail: the main desk, the
laboratory, and the emergency room at a Lincoln hospital; the
laboratory and the emergency room at another Lincoln hospi-
tal; and two other testing facilities, as well as the Lancaster
County Detention Center’s medical department. Jasa testified
that one of the hospitals had referred him to the two other test-
ing facilities. Jasa stated that he made his best effort to find
a facility that would draw blood at the jail and that he spoke
to about 15 people, but he did not obtain the names of the
employees who fielded his calls. Jasa testified that each facil-
ity informed him that it does not come to the jail to perform
independent blood tests.
The district court denied Jasa’s motion to suppress. First,
while the district court made the factual finding that Morrow
observed Jasa’s pickup weaving within his lane and crossing
over the lane line with the driver’s side tires, the district court
ultimately relied on the observation of weaving alone, along
with LFR’s report, in determining that the traffic stop was
justified by reasonable suspicion of criminal activity. Second,
- 829 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822the district court concluded that it was not improper under
title 177 for the officers to “work[] together” to observe Jasa
during the 15-minute period prior to the breath test. Further,
the district court reasoned that even if the officers did not
strictly comply with the 15-minute observation requirement,
the 15-minute observation period is a “‘technique’” rather than
a “‘method’” under title 177, and that thus, any deficiency
in executing it would affect credibility, but not admissibil-
ity. Finally, the district court concluded that suppression of
the breath test was not warranted under § 60-6,199 because,
although the officers did not assist Jasa in obtaining indepen-
dent testing, law enforcement personnel did not intentionally
impede his ability to do so.
After overruling Jasa’s motion to suppress, the district court
conducted a jury trial. The district court received evidence
of the chemical breath test result over Jasa’s timely objec-
tions and overruled his renewed motion to suppress. The jury
found Jasa guilty of DUI with an alcohol concentration of .15
or more.
The district court held an enhancement hearing and deter-
mined the current conviction to be Jasa’s third DUI offense.
The district court sentenced Jasa to 36 months’ probation with
various terms and conditions and 60 days in jail with credit for
time served. Further, the district court revoked Jasa’s opera-
tor’s license for 5 years, with the possibility of obtaining an
ignition interlock device after 45 days.
This appeal followed.
ASSIGNMENTS OF ERROR
Jasa assigns that the district court erred in (1) finding
reasonable suspicion to initiate the stop, (2) finding that the
15-minute observation period prior to the breath test had been
properly executed pursuant to title 177, (3) finding no viola-
tion of § 60-6,199, and (4) not suppressing the breath test and
allowing it to be offered into evidence.
- 830 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822STANDARD OF REVIEW
[1] 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. McCumber, 295 Neb. 941, 893
N.W.2d 411 (2017).
[2] 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. State v.
McIntyre, 290 Neb. 1021, 863 N.W.2d 471 (2015).
ANALYSIS
Legal Basis for Traffic Stop
[3-5] Jasa asserts that the officers did not have a legal basis
to stop his vehicle. He contends that LFR’s tip and the officers’
independent observations were insufficient to create reason-
able suspicion. The Fourth Amendment guarantees the right to
be free of unreasonable search and seizure. State v. Bol, 288
Neb. 144, 846 N.W.2d 241 (2014). This guarantee requires that
an arrest be based on probable cause and limits investigatory
stops to those made upon an articulable suspicion of criminal
activity. Id. A traffic stop requires only that the stopping officer
have specific and articulable facts sufficient to give rise to a
reasonable suspicion that a person has committed or is com-
mitting a crime. Id. In this context, if an officer has probable
cause to stop a traffic violator, the stop is objectively reason-
able. Id.
[6] A police officer has probable cause to stop a defendant’s
vehicle, independent of an anonymous tip, when the officer
observes a traffic violation. See State v. Sanders, 289 Neb.
335, 855 N.W.2d 350 (2014). A traffic violation, no matter how
minor, creates probable cause to stop the driver of a vehicle.
- 831 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822Id. In reviewing a challenge to the legality of an automobile
stop, the question is not whether the officer issued a citation
for a traffic violation or whether the State ultimately proved
the violation; instead, a stop of a vehicle is objectively reason-
able when the police officer has probable cause to believe that
a traffic violation has occurred. Id.
Here, Jasa claims that the traffic stop was not justified
because he did not commit a traffic violation under § 10.14.110
of the Lincoln Municipal Code. That section of the code pro-
hibits driving with “one front and rear wheel . . . on one side
of [the lane] line and the other front and rear wheel . . . on the
opposite side of the [lane] line for a distance more than is nec-
essary to change from one traffic lane to the other with safety.”
Specifically, Jasa claims that his vehicle “did not straddle the
[lane] line with both tires at the same time as required under
the code.” Brief for appellant at 18.
The State contends that Jasa committed a traffic viola-
tion which provided probable cause for the traffic stop. To
support its position, the State first notes the district court’s
factual finding that Morrow observed Jasa’s vehicle “weav-
ing within his lane and at one point crossing over the lane
line with the driver’s side tires.” Despite this factual finding
by the district court, in its holding, the court relied upon the
call from dispatch and Jasa’s vehicle weaving within the lane
as reasonable suspicion for the traffic stop. The State requests
that we accept these factual findings, because on appeal, we
review a trial court’s factual findings for a motion to suppress
based on a claimed violation of the Fourth Amendment for
clear error. See State v. McCumber, 295 Neb. 941, 893 N.W.2d
411 (2017). Although the video is not entirely clear, Morrow
testified that from his perspective, he observed both driver’s
side tires cross the lane line. We find it was not clearly erro-
neous for the district court to accept Morrow’s testimony on
this issue.
[7] Next, based upon these facts, the State argues that we
should find probable cause for the traffic stop based upon a
- 832 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822violation of the law. And we do independently review whether
the facts violate the Fourth Amendment protections as a ques-
tion of law. See State v. McCumber, supra. With the district
court’s having found that Morrow observed both of Jasa’s
driver’s side wheels cross the lane line, it was objectively
reasonable to conclude that a traffic violation had occurred.
Where the record adequately demonstrates that the decision
of a trial court is correct—although such correctness is based
on a ground or reason different from that assigned by the trial
court—an appellate court will affirm. State v. Huff, 279 Neb.
68, 776 N.W.2d 498 (2009). Therefore, we find no error by the
district court in concluding that reasonable suspicion justified
the traffic stop.
A dministration of Breath Test
Pursuant to Title 177
[8] Jasa next disputes the admissibility of the chemical
breath test results. The four foundational elements which the
State must establish as foundation 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 Department of Health and
Human Services, and (4) that all other statutes were satisfied.
State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000). Jasa’s
contentions focus on the third foundational element.
Title 177 is the governing Department of Health and Human
Services regulation in this case. Title 177 authorizes Class B
permit holders to perform a chemical test to analyze a subject’s
breath for alcohol content using an approved method. See 177
Neb. Admin. Code, ch. 1, § 001.07B (2014). Title 177 further
sets forth the “Operating Rules for Class B Permit,” and pro-
vides, “To determine the alcohol content in breath, a Class B
permit holder shall . . . [u]se the appropriate checklist . . . .”
177 Neb. Admin. Code, ch. 1, §§ 007.02 and 007.02B (2014).
- 833 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822Under title 177, the testing machine used here is among the
“[a]pproved evidentiary breath testing methods and instruments
. . .” for which the “[c]hecklist technique . . .” in attachment
16 is approved and required. 177 Neb. Admin. Code, ch. 1,
§§ 008.01, 008.01A, and 008.01C (2014). As described above,
attachment 16 consists of a checklist of tasks including, among
other things, “[o]bserve the subject for 15 minutes prior to
testing.” At the bottom of the checklist is a line with the words
“Permit Holder” underneath.
Here, Morrow observed Jasa for 15 minutes before Sears,
the named permit holder, administered the chemical breath
test. Jasa claims that the breath test was not properly conducted
under the methods stated by the Department of Health and
Human Services in title 177, because Sears failed to observe
Jasa for 15 minutes prior to administering the test and instead
relied upon Morrow’s 15-minute observation of Jasa. Further,
Jasa contends that Sears could not rely on the knowledge of
another officer to satisfy the observation period required by
attachment 16 of title 177, because he and Morrow did not dis-
cuss the 15-minute observation period conducted by Morrow
before Sears administered the breath test.
Jasa points to DeBoer v. Nebraska Dept. of Motor Vehicles,
16 Neb. Ct. App. 760, 761, 751 N.W.2d 651, 654 (2008), where
the Nebraska Court of Appeals referred to the checklist as a
“form by regulation [that] must be completed by an officer
when conducting a breath test.” But that descriptive phrase
occurred only in the background section of that particular
opinion and was not part of the Court of Appeals’ holding in
DeBoer. Although it may be typical, and even the best practice,
for one officer both to administer the breath test and to com-
plete the checklist, title 177 does not require that one officer
perform both duties.
In this instance, competent evidence at the suppression
hearing established that each requirement of attachment 16
had been performed. Morrow, a Class B permit holder, testi-
fied that he personally observed Jasa for the entire 15-minute
- 834 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822observation period and perceived nothing that would affect the
accuracy of the test administered by Sears. Morrow further
verified that he was present for the breath test and completed
attachment 16, which shows that each foundational require-
ment had been met; and other than addressing the manner of
executing the 15-minute observation period, Jasa presented no
evidence or arguments to challenge the form’s validity. Based
on this evidence, we conclude the district court did not err in
admitting the chemical breath test result, despite Jasa’s asser-
tions that it lacked sufficient foundation under title 177.
We digress to note the district court’s finding that even if
the officers had not strictly complied with title 177, the breath
test results were admissible, because the 15-minute observa-
tion period was a technique rather than a method, and, as such,
any failure to strictly adhere to it affected only the weight and
credibility of the evidence, not its admissibility. In reaching
this conclusion, the district court cited State v. Miller, 213
Neb. 274, 281, 328 N.W.2d 769, 773 (1983), where we stated,
“[f]ailure to comply with a technique is not a failure to prove a
foundational element, but affects weight and credibility only.”
Jasa, however, argues that the analysis in Miller does not apply
in this instance, because Miller analyzed a prior rule of the
then Department of Health’s rules and regulations, rather than
title 177. Further, Jasa contends that under title 177, “meth-
ods” and “techniques” are intertwined and thus, no distinction
between the two should apply here.
In reaching our conclusion in Miller, we distinguished
between method and technique, as those terms were expressly
defined in the prior rule. But before arriving at that distinc-
tion, we stated that in order to admit the results of a chemi-
cal test, the statutory foundation must be met. We determined
that such foundation was satisfied, and not until later in the
opinion did we undertake the discussion of “method” and
“technique” to address a requested jury instruction that invited
the jury to assess the admissibility of the evidence. Therefore,
the key question is whether the State proved that the express
- 835 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822requirements of the Department of Health and Human Services
have been fulfilled, and here, we have answered that question
in the affirmative. Having thus concluded, we need not delve
into any distinction between methods and techniques.
Opportunity for Independent Chemical
Test/A dmissibility Under § 60-6,199
Next, Jasa claims that the district court erred when it found
that the officers had not violated his statutory right to an inde-
pendent blood test pursuant to § 60-6,199. Section 60-6,199
provides:
The peace officer who requires a chemical blood,
breath, or urine test or tests pursuant to section 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 physician of his or her choice evaluate his or her
condition and perform or have performed whatever labo-
ratory 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 additional
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.
In State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995),
we applied the language of § 60-6,199, then codified as Neb.
Rev. Stat. § 39-669.09 (Cum. Supp. 1992). We found that an
officer had no statutory duty to transport an in-custody defend­
ant to the hospital for an independent blood test. In Dake, we
also endorsed the view that while “the police cannot hamper
a motorist’s efforts to obtain independent testing, they are
under no duty to assist in obtaining such testing beyond allow-
ing telephone calls to secure the test.” 247 Neb. at 584, 529
N.W.2d at 49.
Here, Jasa requested the opportunity to undergo an inde-
pendent blood test, and Morrow informed him that jail staff
- 836 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822would allow him access to the telephone to make the necessary
arrangements. Jasa’s access to the telephone began at approxi-
mately 2 a.m., shortly after officers administered the chemical
breath test, but, despite making 45 telephone calls, he did not
try to contact a hospital or physician. Instead, he attempted,
unsuccessfully, to make arrangements for bond.
On the morning of the suppression hearing, Jasa called hos-
pitals and other entities to inquire about a blood test. Jasa tes-
tified that he learned that no entity he contacted comes to the
jail to conduct independent blood tests. Notably, Jasa did not
identify any of the individuals who fielded his calls, nor, as the
State points out, does this evidence categorically establish that
Jasa could not have been tested at the jail. It merely shows that
Jasa’s “best efforts” on the morning of the suppression hearing
were fruitless.
In the instant case, Jasa was provided telephone access, but,
whether through misunderstanding or calculated choice, he did
not use it to arrange for timely independent testing. Even if
confusion about bond influenced Jasa’s failure to arrange for
a timely independent blood test, any such misfortune did not
arise due to the fault of law enforcement, who advised him that
he would remain in jail until his court date and that he would
have to arrange for someone to administer a blood test at the
jail. See People v. Kirkland, 157 Misc. 2d 38, 595 N.Y.S.2d
905 (1993) (if driver cannot obtain test, through no fault of
police, it is generally considered driver’s misfortune). Instead,
the officers in this case fulfilled the requirements of § 60-6,199
as applied in Dake: They did not hamper Jasa’s ability to
obtain an independent test, and they assisted him by allowing
him to make telephone calls to secure it.
Despite Jasa’s failure to attempt to arrange for a timely
independent test, he argues that our holding in State v. Dake,
supra, is distinguishable from his situation because he later
attempted to contact hospitals and other entities about an
independent blood test and none of them performed such tests
at the jail. He also claims Dake is distinguishable because he
- 837 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822could not bond out for 3 days, whereas the defendant in Dake
bonded out within a few hours. Under the circumstances in this
case, Jasa believes that the intent of § 60-6,199 is defeated if
the officers are not required to do more than provide access to
a telephone.
Jasa relies on cases from other jurisdictions. He cites
Hedges, 143 Idaho 884, 154 P.3d 1074 (Idaho App. 2007). But
in Hedges, an Idaho court held that “the police . . . have a duty
not to interfere with or affirmatively deny a defendant access
to a telephone once a request has been made to make tele-
phonic arrangements for an independent [blood alcohol content
(BAC)] test,” but “no duty to administer a second BAC test or
otherwise participate in arranging an independent BAC test on
behalf of the defendant” and no duty to “transport a defendant
to a medical facility to obtain an independent BAC test.” 143
Idaho at 888, 154 P.3d at 1078.
Jasa also points to Unruh v. State, 669 So. 2d 242, 243-44
(Fla. 1996), where the Supreme Court of Florida found:
[L]aw enforcement must render reasonable assistance
in helping a DUI arrestee obtain an independent blood
test upon request. In some cases, minimal aid such as
providing access to a telephone and directory will be
sufficient; in others, more active assistance such as
transporting the arrestee to a blood testing facility will
be necessary.
However, unexplained by Jasa, is what would constitute rea-
sonable assistance if we adopted the holding in Unruh v.
State, supra. For example, does the officer need to assist an
extremely intoxicated person who cannot even conduct a tele-
phone call, does the officer order medical personnel to conduct
an independent test if they refuse, and who is liable for the
costs or if an injury occurs? Adopting any standard beyond
allowing a defendant to make his or her own arrangements
would add requirements to § 60-6,199 which are not present
and would lead to confusion for law enforcement and medical
personnel and inconsistencies in applying the law. See State
- 838 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822v. 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).
[9,10] In this instance, even if we ignored Jasa’s failure to
timely attempt to arrange for an independent test, it would
not obviate the fact that the principle of State v. Dake, 247
Neb. 579, 529 N.W.2d 46 (1995), comports with § 60-6,199.
Statutory language is to be given its plain and ordinary mean-
ing. State v. Arizola, 295 Neb. 477, 890 N.W.2d 770 (2017).
And we will not look beyond a statute to determine the legisla-
tive intent when the words are plain, direct, or unambiguous.
State v. Wood, 296 Neb. 738, 895 N.W.2d 701 (2017). Clearly,
§ 60-6,199 allows any “person tested . . . to have a physician
. . . evaluate his or her condition and perform or have per-
formed whatever laboratory tests he or she deems appropri-
ate.” But the officer must “refuse[] to permit”—that is, deny
authorization or consent for—such additional test to trigger
the suppression of any officer-directed test. Since our holding
in Dake over two decades ago, our Legislature has not revis-
ited the language in § 60-6,199. The principle that “the police
cannot hamper a motorist’s efforts to obtain independent test-
ing” and “are under no duty to assist in obtaining such testing
beyond allowing telephone calls to secure the test” is still a
reasonable statement of the law. State v. Dake, 247 Neb. at
584, 529 N.W.2d at 49. Accordingly, the district court did not
err in finding no violation of the statutory rights afforded to
Jasa by § 60-6,199.
[11] Jasa further claims a violation of his due process rights
because he was denied the opportunity to obtain exculpatory
evidence through an independent blood test. However, he did
not raise this issue before the district court, and in appellate
proceedings, the examination by the appellate court is con-
fined to questions which have been determined by the trial
court. State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006).
Therefore, we will not consider this issue on appeal.
- 839 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. JASA
Cite as 297 Neb. 822Sufficiency of Evidence
Jasa argues that if we conclude that the district court erred
in denying his motion to suppress, the evidence at trial was
insufficient to support his conviction for the crime charged.
However, having found that the district court did not err in
denying the motion to suppress, we need not consider this
assignment of error. State v. Bol, 288 Neb. 144, 846 N.W.2d
241 (2014) (appellate court is not obligated to engage in analy-
sis that is not necessary to adjudicate case and controversy
before it).
CONCLUSION
For the reasons set forth above, we affirm.
A ffirmed.