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.
Just after midnight on June 19, 2013, a motorist called the 911 emergency dispatch service to report that a vehicle traveling 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 vehicle 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 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 actually 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 indicated 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
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 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 medical case" and "it was obvious we had an impairment case." Chitwood testified that due to Rothenberger's level of impairment, 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 examination 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 falling. Bliss described Rothenberger as cooperative and polite, but noted he appeared "sedated" and was unable to maintain his balance throughout the investigation. Bliss examined Rothenberger's pupil size, because unequal size could indicate a possible head injury; he determined Rothenberger's pupils were equal in size. After Rothenberger waived his Miranda rights, Bliss asked him whether he had taken any medications. 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:
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.
Rothenberger was charged with two counts: driving under the influence of alcohol or drugs, second offense, and refusal to
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 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 probable 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 suppressed. The county court denied the motion after conducting an evidentiary hearing.
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 evaluation 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.
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 impairment 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.
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."
Rothenberger requested two jury instructions related to the refusal charge. He asked for an instruction defining a "chemical 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 following: Marijuana, cocaine, morphine, codeine, phencyclidine, amphetamine, and methamphetamine."
The county court declined to give either proposed instruction. Other than a few minor suggestions on wording, there were no objections raised to any of the other instructions.
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.
Rothenberger timely appealed to the district court, assigning that the county court erred in (1) failing to sustain the motion 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) failing to give Rothenberger's proposed jury instructions defining "drug" and "chemical test." The district court found all assignments of error were meritless and affirmed Rothenberger's conviction and sentence.
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.
Rothenberger assigns it was error to affirm his conviction 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.
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 district court.
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.
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.
Whether the jury instructions given by a trial court are correct is a question of law.
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 suspicion 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.
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.
Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.
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.
Rothenberger relies on our analysis in State v. Daly
But in Daly, we were not considering the DRE protocol in the context of determining whether officers had probable 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 to support a conviction.
Rothenberger also relies on the Court of Appeals' opinion in State v. Kellogg
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 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.
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.
We hold that neither DRE certification nor a completed DRE examination is a mandatory prerequisite to forming 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 information reasonably trustworthy under the circumstances,
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 taking 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 an illness, an injury, or a medical condition. This information 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.
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.
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 finding of guilt based on such evidence cannot be sustained.
The offense of refusing to submit to a chemical test is set out in § 60-6,197, which provides in relevant part:
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 driving 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 advisement 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 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
Rothenberger next argues he was entitled to a directed verdict 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 conflates 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 governing chemical tests.
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 regulations. But more important, while the administrative regulations 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,"
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 of Appeals, that the county court correctly refused to give Rothenberger's proposed jury instructions.
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 correct statement of the law and were immaterial to the crime of refusal. We conclude the county court did not commit reversible error when it refused each of Rothenberger's proposed instructions, and the district court and Court of Appeals correctly rejected this assignment of error as meritless.
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.
AFFIRMED.
Connolly, J., not participating in the decision.
