Heavican, C.J.
Chancey A. Cornwell was charged by information with driving under the influence and refusing to submit to a chemical test. His motion to quash was denied, and he was convicted following a jury trial. Cornwell appeals, and we affirm.
On February 20, 2014, Cornwell was charged by information with driving under the influence and refusing to submit to a chemical test — in this case, a breath test. The record includes a postarrest chemical test advisement form, which noted in relevant part that the arresting officer had "the authority to direct whether the test or tests shall be of your breath, blood or urine, and may direct that more than one test be given." The arresting officer then filled out part "A" of that form: "
Cornwell initially pled not guilty, but later withdrew his not guilty plea and filed a motion to quash the information. As relevant to the issues on appeal, Cornwell's motion to quash alleged a facial challenge to Neb. Rev. Stat. §§ 60-6,197 and 60-6,197.03(6)
The district court denied Cornwell's motion to quash, and the case proceeded to trial. Following a jury trial, Cornwell was found guilty of driving under the influence and refusing to submit to a chemical test. He was sentenced to 2 to 5 years' imprisonment, and his license was revoked for 15 years. He was given credit for 7 days' time served and credit for 1 year's license revocation.
Cornwell assigns, restated, that the district court erred in denying his motion to quash.
Regarding questions of law presented by a motion to quash, an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court.
The sole issue presented by this appeal is whether the district court erred in denying Cornwell's motion to quash.
Some background is helpful. Nebraska law prohibits the operation of a motor vehicle "[w]hile under the influence of alcoholic liquor."
In addition, the refusal to submit to a chemical test is a crime.
Cornwell was charged with refusing to submit to a chemical test. He argues on appeal that the district court erred in denying his motion to quash, because the chemical test sought was a search under the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, § 7, and no warrant was obtained to compel that search. Cornwell argued in his motion to quash that the consent and refusal statutes criminalized and aggravated the penalty for the charged crime based upon a driver's decision to withdraw his or her consent to a chemical test.
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.
In the time since Cornwell filed his appeal, the U.S. Supreme Court decided Birchfield v. North Dakota.
The distinction made by the Court was based upon the relative intrusiveness of the tests. A breath test does not "`implicat[e] significant privacy concerns,'"
But the Court found a blood test to be "a different matter."
Thus, under Birchfield, a suspected drunk driver can be subjected to a breath test without a warrant, but in order to perform a blood test on that same individual, a warrant must be secured. Moreover, where the Fourth Amendment does not require officers to obtain a warrant before demanding a breath test, the individual has no right to refuse that test. We find Birchfield dispositive.
In this case, Cornwell makes a facial challenge to the consent and refusal statutes. To show that these statutes are facially unconstitutional, Cornwell must show that no set of circumstances exists under which they would be valid. But, post-Birchfield, a warrantless breath test is reasonable and does not run afoul of the Fourth Amendment. Nor do we find
In his supplemental brief, Cornwell takes issue with the postarrest chemical test advisement form used in this case, suggesting that a reasonable motorist reading that form would not be sure that only the checked test — here, a breath test and not a blood or urine test — would be given. This argument is apparently based on the portion of the form that provides that the arresting officer may direct that more than one test be given.
It is not entirely clear whether Cornwell is making a facial or as-applied challenge to the form, but we conclude that either challenge fails. If the challenge is an as-applied challenge, it fails, because the record demonstrates that the only test ever required of Cornwell was a breath test. At no time was he ever requested to submit to a blood or urine test. Cornwell cannot demonstrate that his Fourth Amendment rights were violated where the only warrantless test requested of him did not violate the Fourth Amendment.
And to the extent Cornwell makes a facial challenge to the form, it also fails. Even assuming that such a challenge would be valid as to the form, as distinguished from the consent and refusal statutes themselves, we have concluded above that a facial challenge fails, because a breath test is valid and does not violate the Fourth Amendment.
Cornwell's arguments on appeal are without merit.
The decision of the district court is affirmed.
AFFIRMED.
Stacy, J., not participating.