State v. Rothenberger

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/23/2016 08:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. ROTHENBERGER
Cite as 294 Neb. 810
State of Nebraska, appellee, v.
Douglas Rothenberger, appellant.
___ N.W.2d ___
Filed September 23, 2016. No. S-14-1160.
1. Criminal Law: Courts: Appeal and Error. 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.
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. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on
renewed objection, an appellate court considers all the evidence, both
from trial and from the hearings on the motion to suppress.
4. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder
of fact. 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.
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
5. Jury Instructions: Judgments: Appeal and Error. Whether the jury
instructions given by a trial court are correct is a question of law. When
reviewing questions of law, an appellate court resolves the questions
independently of the conclusion reached by the lower court.
6. Constitutional Law: Search and Seizure: Arrests: Probable Cause.
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the
Nebraska Constitution protect individuals against unreasonable searches
and seizures by the government. These constitutional protections man-
date that an arrest be justified by probable cause to believe that a person
has committed or is committing a crime.
7. Probable Cause: Words and Phrases: Appeal and Error. Probable
cause is a flexible, commonsense standard that depends on the totality
of the circumstances. An appellate court determines whether probable
cause existed under an objective standard of reasonableness, given all
the known facts and circumstances. The probable cause standard is a
practical, nontechnical conception that deals with the factual and practi-
cal considerations of everyday life on which reasonable and prudent
persons, not legal technicians, act.
8. Police Officers and Sheriffs: Arrests: Probable Cause. When a law
enforcement officer has knowledge, based on information reasonably
trustworthy under the circumstances, which justifies a prudent belief
that a suspect is committing or has committed a crime, the officer has
probable cause to arrest without a warrant. Probable cause for a warrant-
less arrest is to be evaluated by the collective information of the police
engaged in a common investigation.
9. Arrests: Probable Cause: Controlled Substances: Blood, Breath, and
Urine Tests. There is no bright-line rule requiring that the full drug rec-
ognition expert protocol be administered as a prerequisite to a finding of
probable cause to arrest for driving under the influence of drugs. When
determining whether probable cause exists to arrest a suspect for driving
under the influence of drugs, the same familiar, commonsense principles
which govern all arrests apply.
10. ____: ____: ____: ____. Neither drug recognition expert certification
nor a completed drug recognition expert examination is a mandatory
prerequisite to forming probable cause to arrest a suspect for driving
under the influence of drugs.
11. Criminal Law: Directed Verdict. In a criminal case, a court can direct
a verdict only when there is a complete failure of evidence to establish
an essential element of the crime charged or the evidence is so doubt-
ful in character, lacking probative value, that a finding of guilt based
on such evidence cannot be sustained. If there is any evidence which
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
will sustain a finding for the party against whom a motion for directed
verdict is made, the case may not be decided as a matter of law, and a
verdict may not be directed.
12. Criminal Law: Police Officers and Sheriffs: Drunk Driving:
Controlled Substances: Blood, Breath, and Urine Tests. The mate-
rial elements of the crime of refusal are (1) the defendant was arrested
for an offense arising out of acts alleged to have been committed while
he or she was driving or in actual physical control of a motor vehicle
while under the influence of alcoholic liquor or drugs; (2) a peace offi-
cer had reasonable grounds to believe the defendant was driving or in
actual physical control of a motor vehicle in this state while under the
influence of alcohol or drugs; (3) the peace officer required the defend­
ant to submit to a chemical test of his or her blood, breath, or urine to
determine the concentration of alcohol or the presence of drugs; (4) the
defendant was advised that his or her failure to submit to a chemical test
of his or her blood, breath, or urine is a separate offense for which he
or she could be charged; and (5) the defendant refused to submit to a
chemical test as required by the peace officer.
13. Criminal Law: Controlled Substances: Blood, Breath, and Urine
Tests. Neither the type of drug suspected to be causing a person’s
impairment nor the ability of a chemical test to reveal the presence of a
particular drug is an element of the crime of refusal.
14. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
Petition for further review from the Court of Appeals,
Pirtle, R iedmann, and Bishop, Judges, on appeal thereto from
the District Court for Scotts Bluff County, Leo Dobrovolny,
Judge, on appeal thereto from the County Court for Scotts
Bluff County, James M. Worden, Judge. Judgment of Court of
Appeals affirmed.
Bell Island, of Island & Huff, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, Nathan A. Liss, and
Erin E. Tangeman for appellee.
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Stacy, J.
After a jury trial in county court, Douglas Rothenberger
was convicted of refusal to submit to a chemical test and was
sentenced to probation. On appeal, the district court affirmed,
as did the Nebraska Court of Appeals.1 On further review,
we find no merit to Rothenberger’s assigned errors, and
we affirm.
I. FACTS
1. Background
Just after midnight on June 19, 2013, a motorist called the
911 emergency dispatch service to report that a vehicle travel-
ing on Highway 92 near Scottsbluff, Nebraska, was swerving
from one edge of the highway to the other and fluctuating
between 20 and 60 m.p.h. The motorist followed the vehicle
until Deputy Sheriff Jared Shepard arrived.
Shepard followed the vehicle and saw it weave back and
forth and cross the centerline twice. Shepard testified the vehi-
cle was traveling 20 to 25 m.p.h. on roads where the posted
speed limit was 50 to 65 m.p.h. After following the vehicle for
about three-fourths of a mile, Shepard activated the lights on
his patrol car to initiate a traffic stop. The vehicle did not stop.
Shepard then switched on his siren, and the vehicle pulled onto
the right shoulder and stopped.
When Shepard made contact with the driver, Rothenberger,
Rothenberger’s speech was slow and slurred. Rothenberger
appeared confused and had trouble getting his window down
and opening his vehicle door. Rothenberger looked in his
wallet for 3 to 4 minutes before providing Shepard with his
driver’s license. He was not able to provide current proof
1
See State v. Rothenberger, No. A-14-1160, 2015 WL 9004823 (Neb. App.
Dec. 15, 2015) (selected for posting to court Web site).
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
of insurance. Dispatch advised Shepard that Rothenberger’s
license was suspended. However, the parties stipulated at
trial that Rothenberger’s Nebraska driver’s license was actu-
ally expired, rather than suspended, and that he had a valid
Texas license.
Shepard asked Rothenberger to step out of the vehicle.
Rothenberger had difficulty standing and maintaining his
balance without holding onto the vehicle. Shepard did not
smell alcohol on Rothenberger’s breath, but saw that his eyes
were watery. Rothenberger was asked to perform standardized
field sobriety tests. During the nine-step walk-and-turn test,
Rothenberger could not maintain his balance and staggered
into approaching traffic, so Shepard discontinued the test for
safety reasons. During the one-legged stand test, Rothenberger
was unable to maintain his balance or keep his foot raised
for more than 2 seconds. His performance on the tests indi-
cated impairment. Shepard administered a preliminary breath
test at the scene, which was negative for alcohol. Shepard
asked Rothenberger whether he had taken any medications,
and he admitted taking Suboxone within the previous 24
hours. Rothenberger was asked whether he had any medical
conditions, and he did not indicate he was suffering from any
illness or injury. Rothenberger did not request medical help.
Shepard testified that based on his investigation, it was his
opinion that Rothenberger was impaired, so he arrested him
on suspicion of driving under the influence of alcohol or drugs
and driving under suspension and transported him to the Scotts
Bluff County sheriff’s office for a drug recognition expert
(DRE) examination.
Sgt. Jeff Chitwood was dispatched to the traffic stop as
backup. Chitwood testified that when he arrived, Shepard was
talking to Rothenberger outside the vehicle. Chitwood testified
that throughout the contact, Rothenberger had to hold onto
his vehicle or the patrol car to keep his balance. Chitwood
heard Rothenberger tell Shepard he had taken Suboxone
“at 10 a.m. earlier that same day.” Chitwood watched while
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
Shepard took Rothenberger through the standard field sobriety
tests. Chitwood testified that during the walk-and-turn test,
Rothenberger “wandered off into the traffic lane,” and that
at another point, Shepard had to catch Rothenberger to keep
him from falling. Chitwood asked Rothenberger questions in
an effort “to ascertain if we had an impairment case or a
medical case.” Chitwood testified that based on Rothenberger’s
answers, there was “never any indication that we had a medi-
cal case” and “it was obvious we had an impairment case.”
Chitwood testified that due to Rothenberger’s level of impair-
ment, he was arrested and placed in Shepard’s patrol car to be
transported to the sheriff’s station.
Once at the sheriff’s station, Rothenberger was turned over
to Sgt. Mark Bliss. Bliss had completed training as a DRE and
was also a DRE instructor. Bliss performed a DRE examina-
tion on Rothenberger and again administered standardized
field sobriety tests. According to Bliss, Rothenberger either
failed the standardized field sobriety tests or was unable
to complete them for safety reasons because he kept fall-
ing. Bliss described Rothenberger as cooperative and polite,
but noted he appeared “sedated” and was unable to main-
tain his balance throughout the investigation. Bliss examined
Rothenberger’s pupil size, because unequal size could indicate
a possible head injury; he determined Rothenberg’s pupils
were equal in size. After Rothenberger waived his Miranda
rights, Bliss asked him whether he had taken any medica-
tions. Rothenberger admitted “he’d been taking Suboxone”
and had taken “his regular dose” at approximately 10 a.m. As
the final step in his investigation, Bliss asked Rothenberger to
submit to a chemical test for drugs. Bliss read Rothenberger
the postarrest chemical advisement form, which provided in
pertinent part:
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. Pursuant to law, I
am requiring you to submit to a chemical test or tests of
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
your blood, breath, or urine to determine the concentra-
tion of alcohol or drugs in your blood, breath, or urine.
Refusal to submit to such test or tests is a separate
crime for which you may be charged.
....
. . . I hereby direct a test of your . . . urine to deter-
mine the . . . drug content.
Rothenberger refused to sign the advisement form, and he
refused to submit to a chemical test of his urine. A copy
of the postarrest chemical advisement form was received
into evidence.
2. Motion to Quash
Rothenberger was charged with two counts: driving under
the influence of alcohol or drugs, second offense, and refusal
to submit to a chemical test, first offense. He moved to quash
the refusal charge on the ground that Nebraska’s refusal stat-
ute was unconstitutional under both the U.S. Constitution
and the Nebraska Constitution. The county court overruled
the motion, and Rothenberger entered not guilty pleas to
both counts. For the sake of completeness, we note that
Rothenberger has not assigned error to the county court’s
ruling on the motion to quash and does not argue on appeal
that Nebraska’s refusal statute is unconstitutional. As such,
although we are aware of the U.S. Supreme Court’s recent
decision in Birchfield v. North Dakota,2 the constitutional-
ity of Nebraska’s refusal statute is not an issue before us in
this appeal.
3. Motion to Suppress
Rothenberger also moved to suppress evidence on the
ground his arrest was not supported by probable cause.
He argued Shepard and Chitwood were not DRE-certified
2
Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d
560 (2016).
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
examiners, and so could not form the requisite probable
cause to arrest him for driving under the influence of drugs.
Rothenberger further argued that because there was no prob-
able cause to arrest, both the evidence later obtained through
testing by Bliss and the evidence that Rothenberger refused
to submit to a chemical test of his urine should also be sup-
pressed. The county court denied the motion after conducting
an evidentiary hearing.
4. Jury Trial
At the commencement of trial, Rothenberger renewed his
motion to suppress and was given a continuing objection based
on that motion. Rothenberger also made oral motions in limine
to preclude the State from offering (1) any testimony from
Bliss about Rothenberger’s performance on the DRE evalua-
tion or Bliss’ opinion regarding the cause of Rothenberger’s
impairment; (2) evidence Rothenberger told officers he was
taking Suboxone to manage a prior addiction to Vicodin; and
(3) evidence that when he was stopped, Rothenberger had a
pill bottle containing two unidentified pills. The State offered
no objection, and the county court sustained Rothenberger’s
motions in limine. The State then offered evidence consistent
with the facts detailed earlier.
(a) Motion for Directed Verdict
At the close of the State’s case, Rothenberger moved for
directed verdict on both counts. As to the driving under the
influence charge, Rothenberger argued that although there was
evidence of impairment, there was no evidence the impair-
ment was caused by alcohol or drugs. As to the refusal charge,
Rothenberger argued he could not be convicted of refusing
a “chemical test,” because, under title 177 of the Nebraska
Administrative Code, a “chemical test” is defined as a test to
detect seven specific drugs.3 Rothenberger argued that the drug
3
See 177 Neb. Admin. Code, ch. 7, §§ 001.5 and 001.13 (2007).
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
he admitted to taking, Suboxone, is not one which a “chemical
test,” under title 177 would detect.
The county court granted the motion for directed verdict on
the driving under the influence charge, reasoning that although
there was “clearly a ton of evidence” that Rothenberger was
impaired and that alcohol was not causing his impairment,
there was insufficient evidence that his impairment was drug
related, in part because the State presented no evidence about
Suboxone or its effects. The State did not appeal this ruling.
The trial court overruled the motion for directed verdict on the
refusal charge, reasoning that “there’s plenty of evidence for
the jury to consider the issue of refusal.”
(b) Jury Instructions
Rothenberger requested two jury instructions related to the
refusal charge. He asked for an instruction defining a “chemi-
cal test” as “one performed according to the method approved
by the Department of Health and Human Services [and stating
that] [t]he Method Approved by the Department of Health and
Human Services for drug testing is set forth in title 177 NAC
7.” Rothenberger also asked that the jury be instructed that
“Drug for purposes of a chemical test means any of the fol-
lowing: Marijuana, cocaine, morphine, codeine, phencyclidine,
amphetamine, and methamphetamine.”
The county court declined to give either proposed instruc-
tion. Other than a few minor suggestions on wording, there
were no objections raised to any of the other instructions.
(c) Verdict and Sentence
Rothenberger did not put on a defense. The jury returned
a verdict finding him guilty of refusing a chemical test. The
county court imposed a sentence of 6 months’ probation, a
60-day license revocation, a $500 fine, and court costs.
5. A ppeal to District Court
Rothenberger timely appealed to the district court, assigning
that the county court erred in (1) failing to sustain the motion
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
to suppress, (2) receiving inadmissible hearsay evidence at
the motion to suppress hearing, (3) overruling Rothenberger’s
motion for directed verdict on the refusal charge, and (4) fail-
ing to give Rothenberger’s proposed jury instructions defining
“drug” and “chemical test.” The district court found all assign-
ments of error were meritless and affirmed Rothenberger’s
conviction and sentence.
6. Court of A ppeals
On further appeal to the Court of Appeals, Rothenberger
assigned three errors. He claimed the district court erred in
affirming the judgment and conviction, because (1) there was
no probable cause to support Rothenberger’s arrest, (2) it was
error not to direct a verdict on the refusal charge, and (3) it was
error not to give Rothenberger’s proposed jury instructions.
The Court of Appeals found no merit to any of the assignments
of error and affirmed the judgment and conviction. We granted
Rothenberger’s petition for further review.
II. ASSIGNMENTS OF ERROR
Rothenberger assigns it was error to affirm his convic-
tion and sentence for refusal, because (1) his arrest was not
supported by probable cause, (2) the county court should
have directed a verdict on the refusal charge, and (3) the
county court should have given Rothenberger’s proposed jury
instructions.
III. STANDARD OF REVIEW
[1] When deciding appeals from criminal convictions in
county court, we apply the same standards of review that
we apply to decide appeals from criminal convictions in dis-
trict court.4
[2,3] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
4
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
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STATE v. ROTHENBERGER
Cite as 294 Neb. 810
an appellate court applies a two-part standard of review.5
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.6 When a motion to suppress is denied
pretrial and again during trial on renewed objection, an appel-
late court considers all the evidence, both from trial and from
the hearings on the motion to suppress.7
[4] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency
of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, an
appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact.8 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.9
[5] Whether the jury instructions given by a trial court are
correct is a question of law.10 When reviewing questions of law,
an appellate court resolves the questions independently of the
conclusion reached by the lower court.11
5
State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).
6
Id.
7
State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).
8
State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016).
9
State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
10
State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015).
11
Id.
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STATE v. ROTHENBERGER
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IV. ANALYSIS
1. Probable Cause to A rrest for
Driving Under Influence
of Drugs
Rothenberger’s primary argument is that because neither
Shepard nor Chitwood was a certified DRE officer, they could
not formulate sufficient probable cause to arrest him for sus-
picion of driving under the influence of drugs. Specifically,
Rothenberger suggests that only DRE-certified officers can
rule out the possibility that a suspect’s impairment is due to
a medical condition, rather than drugs. And Rothenberger
further argues that absent a valid arrest for driving under the
influence, Bliss had no legal authority to ask Rothenberger
to submit to a chemical test to determine the presence of
drugs, so evidence of Rothenberger’s refusal should have
been suppressed.
[6] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the govern-
ment.12 These constitutional protections mandate that an arrest
be justified by probable cause to believe that a person has com-
mitted or is committing a crime.13
[7] Probable cause is a flexible, commonsense standard
that depends on the totality of the circumstances.14 We deter-
mine whether probable cause existed under an objective
standard of reasonableness, given all the known facts and cir-
cumstances.15 The probable cause standard is a practical, non-
technical conception that deals with the factual and practical
12
State v. Piper, supra note 7.
13
State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010).
14
State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
15
Id.
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considerations of everyday life on which reasonable and pru-
dent persons, not legal technicians, act.16
[8] When a law enforcement officer has knowledge, based
on information reasonably trustworthy under the circum-
stances, which justifies a prudent belief that a suspect is com-
mitting or has committed a crime, the officer has probable
cause to arrest without a warrant.17 Probable cause for a war-
rantless arrest is to be evaluated by the collective information
of the police engaged in a common investigation.18
Rothenberger relies on our analysis in State v. Daly19 to sug-
gest we have approved of a specific DRE protocol which was
not followed in the present case. In Daly, we said:
A field DRE examination generally involves mak-
ing three determinations: first, that a person is impaired
and that the impairment is not consistent with alcohol
intoxication; second, the ruling in or out of medical
conditions that could be responsible for the signs and
symptoms; and third, what type of drug is responsible
for the impairment. The process is systematic and stan-
dardized. A DRE officer uses a “fact sheet” to record his
or her observations—a standardized form with prepared
entries for the various tests and observations the officer
must perform.20
But in Daly, we were not considering the DRE protocol
in the context of determining whether officers had prob-
able cause to arrest for driving under the influence of drugs.
Rather, we were considering a challenge to the admissibility
of expert DRE testimony at trial to prove the defendant’s
guilt. Probable cause requires less than the evidence necessary
16
State v. Perry, 292 Neb. 708, 874 N.W.2d 36 (2016).
17
State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
18
Id.
19
State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
20
Id. at 910, 775 N.W.2d at 57.
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to support a conviction.21 In Daly, we neither addressed nor
suggested the role, if any, the standard DRE protocol plays
in determining probable cause to arrest a suspect for driving
under the influence of drugs.
Rothenberger also relies on the Court of Appeals’ opinion in
State v. Kellogg22 to suggest that a completed DRE examina-
tion by a certified officer is a necessary prerequisite to form-
ing probable cause to arrest for driving under the influence
of drugs. In Kellogg, a driver was stopped for speeding. The
trooper noticed the driver was confused and overactive, had
trouble concentrating, and could not sit still. The driver’s
demeanor made the trooper suspect she was under the influ-
ence of a drug. The driver denied drinking any alcohol but
admitted she had “‘taken some prescription medication.’”23
The trooper, who was a certified DRE officer, administered
standardized field sobriety tests, and the driver displayed
impairment on all but one of the tests. The driver submitted
to a preliminary breath test, which was negative for alcohol.
The trooper asked the driver to submit to a chemical test of her
urine to determine the presence of drugs, and she refused. The
trooper concluded the driver was impaired and arrested her for
driving under the influence of drugs. A subsequent inventory
search of her vehicle revealed a baggie of methamphetamine,
and ultimately, she was charged with and found guilty of pos-
session of methamphetamine.
On appeal, the driver argued the trial court should have
suppressed evidence discovered during the search, because the
trooper lacked probable cause to arrest her for driving under
the influence of drugs. The Court of Appeals analyzed all the
facts and circumstances known to the trooper at the time, and
it affirmed the trial court’s finding that there was probable
21
See State v. Perry, supra note 16.
22
State v. Kellogg, 22 Neb. Ct. App. 638, 859 N.W.2d 355 (2015).
23
Id. at 640, 859 N.W.2d at 358.
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cause to arrest for driving under the influence of drugs. While
the Court of Appeals noted the trooper was a certified DRE
officer, the court’s conclusion that probable cause existed did
not turn on the trooper’s certification or on the specifics of
any particular test performed, but, rather, on the totality of the
officer’s observations.
[9] We decline to adopt a bright-line rule requiring that
the full DRE protocol be administered as a prerequisite to
a finding of probable cause to arrest for driving under the
influence of drugs.24 Rather, we hold that when determining
whether probable cause exists to arrest a suspect for driving
under the influence of drugs, the same familiar, commonsense
principles which govern all arrests apply.25 We expressly reject
Rothenberger’s argument that only a DRE-certified officer
who completes the full DRE protocol can find probable cause
to arrest for driving under the influence of drugs. Such a rule
would present law enforcement with a legal quandary in cases
involving driving under the influence of drugs. Under Neb.
Rev. Stat. § 60-6,197 (Cum. Supp. 2014), peace officers can
require a chemical test only when a driver has been arrested
for an offense arising out of acts alleged to have occurred
while driving or in actual physical control of a motor vehicle
while under the influence of alcohol or drugs, and only when
24
See, State v. Kestle, 996 So. 2d 275 (La. 2008); Hill v. Director of Revenue,
424 S.W.3d 495 (Mo. App. 2014). See, also, People v. Ciborowski, 2016 IL
App (1st) 143352, 55 N.E.3d 259, 404 Ill. Dec. 163 (2016); Bobolakis v.
DiPietrantonio, 523 Fed. Appx. 85 (2d Cir. 2013); Wilson v. City of Coeur
D’Alene, No. 2:09-CV-00381-EJL, 2010 WL 4853341 (D. Idaho Nov. 19,
2010) (unpublished opinion); Leverenz v. Kansas Dept. of Revenue, No.
112039, 2015 WL 5750535 (Kan. App. Oct. 2, 2015) (unpublished opinion
listed in table of “Decisions Without Published Opinions” at 356 P.3d
1077 (2015)); State v. Rios-Gonzales, No. 32585-3-II, 2005 WL 2858081
(Wash. App. Nov. 1, 2005) (unpublished opinion listed at 130 Wash. App.
1016 (2005)).
25
See, State v. Perry, supra note 16; State v. Matit, supra note 14; State v.
Van Ackeren, supra note 17.
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the officer has reasonable grounds to believe such person
was driving or in actual physical control of a motor vehicle
while under the influence of alcohol or drugs. Under the rule
Rothenberger advocates, officers could not arrest a driver for
driving under the influence of drugs until after completing the
final step in the DRE protocol (a chemical test), but officers
could not request the chemical test until after the driver had
been arrested.
[10] We hold that neither DRE certification nor a com-
pleted DRE examination is a mandatory prerequisite to form-
ing probable cause to arrest a suspect for driving under the
influence of drugs. Instead, we determine whether Shepard
and Chitwood had probable cause to arrest Rothenberger by
considering whether they had knowledge, based on informa-
tion reasonably trustworthy under the circumstances, which
justified a prudent belief that Rothenberger had committed the
crime of driving under the influence of drugs.26
Applying this standard, we conclude the officers had an
objectively reasonable basis to suspect Rothenberger was
operating a motor vehicle under the influence of drugs.
Rothenberger was observed driving erratically and fluctuating
between 20 and 60 m.p.h. He had slow and slurred speech,
difficulty multitasking, and trouble maintaining his balance
throughout the traffic stop. Rothenberger either failed or was
unable to complete standardized field sobriety tests because
he kept falling. He appeared “sedated.” The officers did not
smell alcohol on Rothenberger’s breath and ruled out alcohol
as a possible cause for his impairment after administering a
preliminary breath test, which was negative. Rothenberger was
asked whether he had taken any medications and admitted tak-
ing Suboxone. Deputies questioned Rothenberger to ascertain
whether they “had an impairment case or a medical case” and
nothing indicated Rothenberger’s impairment was related to
26
See State v. Van Ackeren, supra note 17.
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an illness, an injury, or a medical condition. This informa-
tion was reasonably trustworthy under the circumstances to
justify a prudent belief that Rothenberger was impaired; that
his impairment was not the result of alcohol, an injury, or a
medical condition; and that he had committed the crime of
driving under the influence of drugs. As the county court, the
district court, and the Court of Appeals correctly concluded,
the officers had probable cause to arrest Rothenberger for
driving under the influence. Rothenberger’s first assignment
of error is meritless.
2. Overruling Motion for
Directed Verdict
Rothenberger assigns it was error to overrule his motion for
directed verdict on the charge of refusing a chemical test. He
concedes there was ample evidence of impairment, but argues
there was insufficient evidence that he was impaired by a drug.
Additionally, he argues there was no evidence he refused a
“chemical test” as that term is defined under title 177 of the
Nebraska Administrative Code.
(a) Evidence of Drug
Impairment
[11] In a criminal case, a court can direct a verdict only
when there is a complete failure of evidence to establish an
essential element of the crime charged or the evidence is so
doubtful in character, lacking probative value, that a find-
ing of guilt based on such evidence cannot be sustained.27 If
there is any evidence which will sustain a finding for the party
against whom a motion for directed verdict is made, the case
may not be decided as a matter of law, and a verdict may not
be directed.28
27
State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014).
28
Id.
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The offense of refusing to submit to a chemical test is set
out in § 60-6,197, which provides in relevant part:
(1) 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.
(2) Any peace officer who has been duly authorized
to make arrests for violations of traffic laws in this state
. . . may require any person arrested for any offense aris-
ing out of acts alleged to have been committed while the
person was driving or was in actual physical control of
a motor vehicle while under the influence of alcoholic
liquor or drugs to submit to a chemical test or tests of his
or her blood, breath, or urine for the purpose of determin-
ing the concentration of alcohol or the presence of drugs
in such blood, breath, or urine when the officer has rea-
sonable grounds to believe that such person was driving
or was in the actual physical control of a motor vehicle in
this state while under the influence of alcoholic liquor or
drugs in violation of section 60-6,196.
(3) Any person arrested as described in subsection (2)
of this section may, upon the direction of a peace officer,
be required to submit to a chemical test or tests of his
or her blood, breath, or urine for a determination of the
concentration of alcohol or the presence of drugs. . . .
Any person who refuses to submit to such test or tests
required pursuant to this section shall be . . . guilty of a
crime and upon conviction punished as provided in sec-
tions 60-6,197.02 to 60-6,197.08.
....
(5) Any person who is required to submit to a chemi-
cal blood, breath, or urine test or tests pursuant to this
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section shall be advised that refusal to submit to such
test or tests is a separate crime for which the person may
be charged. Failure to provide such advisement shall
not affect the admissibility of the chemical test result
in any legal proceedings. However, failure to provide
such advisement shall negate the state’s ability to bring
any criminal charges against a refusing party pursuant to
this section.
[12] As such, the material elements of the crime of refusal
are (1) the defendant was arrested for an offense arising out of
acts alleged to have been committed while he or she was driv-
ing or in actual physical control of a motor vehicle while under
the influence of alcoholic liquor or drugs; (2) a peace officer
had reasonable grounds to believe the defendant was driving or
in actual physical control of a motor vehicle in this state while
under the influence of alcohol or drugs; (3) the peace officer
required the defendant to submit to a chemical test of his or
her blood, breath, or urine to determine the concentration of
alcohol or the presence of drugs; (4) the defendant was advised
that his or her failure to submit to a chemical test of his or her
blood, breath, or urine is a separate offense for which he or she
could be charged; and (5) the defendant refused to submit to a
chemical test as required by the peace officer.
Here, the State adduced evidence that Rothenberger was
arrested for driving under the influence; evidence suggesting
the officers had reasonable grounds to believe Rothenberger
was driving while under the influence of drugs; evidence that
after additional testing by a DRE officer, Rothenberger was
asked to submit to a urine test to determine the presence of
drugs; evidence he was given a postarrest chemical advise-
ment form telling him that if he refused the chemical test, he
could be charged with a crime; and evidence that Rothenberger
refused the test.
Rothenberger argues that because Shepard and Chitwood
were not certified DRE officers, they could not eliminate
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the possibility that his impairment was caused by a medical
condition and thus could not form “reasonable grounds” to
believe he was driving under the influence of drugs. We at
least implicitly rejected this argument when concluding the
officers had probable cause to arrest Rothenberger for driving
under the influence, and explicitly reject it now. Viewing the
evidence in the light most favorable to the State, we conclude
there was evidence presented from which a rational jury could
find beyond a reasonable doubt that when Bliss examined
Rothenberger and asked him to submit to a chemical test for
drugs, he had reasonable grounds to believe Rothenberger
had been driving under the influence of drugs. Rothenberger’s
argument to the contrary is without merit.
(b) Chemical Test
Rothenberger next argues he was entitled to a directed ver-
dict on the refusal charge, because the State never established
it was a “chemical test” he refused. Rothenberger’s argument
in this regard rests on a faulty premise, and improperly con-
flates the requirements for establishing the admissibility of
chemical tests with the elements necessary for proving refusal
of a chemical test.
For purposes of determining competent evidence in driving
under the influence prosecutions, Neb. Rev. Stat. § 60-6,201(3)
(Reissue 2010) provides that “[t]o be considered valid,” a
chemical test of blood, breath, or urine “shall be performed
according to methods approved by the Department of Health
and Human Services.” Pursuant to this statute, title 177 of
the Nebraska Administrative Code contains regulations gov-
erning chemical tests.29 Those regulations define “[c]hemical
test” as “an examination which measure’s [sic] the presence
of a drug by a chemical reaction, or chemical detection using
a laboratory instrument” and define “[d]rug” as “any of the
29
See 177 Neb. Admin. Code, supra note 3.
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f­ ollowing[:] Marijuana, cocaine, morphine, codeine, phencycli-
dine, amphetamine, or methamphetamine.”30
[13] Rothenberger reasons that since the drug he admitted
to taking, Suboxone, is not one of the drugs which would
be detected by a “chemical test” approved under title 177,
he cannot be found guilty of refusing a “chemical test.”
Obviously, because Rothenberger refused the chemical test,
we will never know whether the test would have revealed the
presence of one of the seven drugs referenced in the regula-
tions. But more important, while the administrative regula-
tions governing chemical tests impact the admissibility of
competent evidence to prove the crime of driving under the
influence, they have no relevance to proving the crime of
refusal. As both the district court and the Court of Appeals
correctly observed, neither the type of drug suspected to be
causing a person’s impairment nor the ability of a chemical
test to reveal the presence of a particular drug is an element
of the crime of refusal. The Legislature has made it a crime
to operate a motor vehicle while under the influence of “any
drug,”31 and an officer’s ability to request a chemical test
under § 60-6,197 is not limited to any particular drug. A driver
may not evade conviction for refusing a chemical test by
claiming to be impaired by a drug which will not be detected
by the requested test. Rothenberger’s argument in this regard
is entirely without merit.
3. Proposed Jury Instructions
Defining “Chemical Test”
and “Drug”
Rothenberger assigns error to the county court’s refusal to
give his proposed jury instructions defining “chemical test”
and “drug.” We conclude, as did the district court and the Court
30
Id.
31
Neb. Rev. Stat. § 60-6,196(1)(a) (Reissue 2010).
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of Appeals, that the county court correctly refused to give
Rothenberger’s proposed jury instructions.
[14] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction.32
As discussed previously, it is immaterial to the crime of
refusal whether the substance impairing the driver is one
which will be detected by a chemical test which the driver has
refused. Rothenberger’s requested instructions were not a cor-
rect statement of the law and were immaterial to the crime of
refusal. We conclude the county court did not commit revers-
ible error when it refused each of Rothenberger’s proposed
instructions, and the district court and Court of Appeals cor-
rectly rejected this assignment of error as meritless.
V. CONCLUSION
The county court did not err in finding there was probable
cause to arrest Rothenberger for suspicion of driving under the
influence of drugs, in refusing to direct a verdict on the refusal
charge, or in refusing to give Rothenberger’s proposed jury
instructions. The district court and the Court of Appeals did
not err when they affirmed those rulings. On further review, we
affirm the decision of the Court of Appeals.
A ffirmed.
Connolly, J., not participating in the decision.
32
State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016).