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State v. Miles11/16/1999
1. Administrative Law: Statutes: Appeal and Error. The interpretation of statutes and regulations presents questions of law, in connection with which an appellate court has an obligation to reach an independent Conclusion irrespective of the decision made by the court below, according deference to an agency's interpretation of its own regulations, unless plainly erroneous or inconsistent.
2. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
3. Administrative Law: Appeal and Error. In construing and applying rules and regulations, an appellate court will accord deference to an agency's interpretation of its own regulations.
4. Administrative Law: Blood, Breath, and Urine Tests. For purposes of title 177, chapter 1, of the Nebraska Administrative Code, the used portion of the simulator solution (which is prohibited from reuse) is that which is vaporized and discharged into the air, and the unused portion, which may be used for the next analyses of the Intoxilyzer, is what is left and returned to the container supplied by the Nebraska Department of Health and Human Services.
5. Rules of Evidence. A document is authenticated when evidence is presented that is sufficient to support a finding that the matter in question is what its proponent claims.
6. Convictions: Drunk Driving : Evidence. Either a law enforcement officer's observations of a defendant's intoxicated behavior or the defendant's poor performance on field sobriety tests constitutes sufficient evidence to sustain a conviction of driving under the influence of alcoholic liquor.
Appeal from the District Court for Scotts Bluff County, Robert O. Hippe, Judge, on appeal thereto from the County Court for Scotts Bluff County, G. Glenn Camerer, Judge. Judgment of District Court affirmed.
Travis Miles was charged by complaint with third-offense driving under the influence of alcoholic liquor. After a jury trial in July 1998 in the Scotts Bluff County Court, Miles was convicted and sentenced to 90 days in jail, was ordered to pay a $500 fine and $73 in court costs, and had his license suspended for 15 years. Miles appealed to the district court for Scotts Bluff County, which affirmed the conviction.
I. BACKGROUND
On January 5, 1998, Officer Pete Wysocki, a 10-year veteran of the Scottsbluff Police Department, was patrolling the west side of Scottsbluff, Nebraska. While on patrol, he observed a pickup truck in front of him, traveling north on Avenue I. When he saw the vehicle jerk erratically, Wysocki turned on his overhead camera. He then observed the truck weave and cross the centerline for a few seconds. Wysocki activated the lights on his cruiser and pulled the truck over. The officer asked the driver, Miles, for his license, registration, and proof of insurance. While Miles was searching for these items, Wysocki noticed an odor of alcohol coming from the inside of the vehicle. Miles was the only person in the truck. When asked, Miles told Wysocki that he had been drinking earlier, but that he was willing to take sobriety tests. Wysocki thereafter conducted sobriety tests on Miles.
According to Wysocki, Miles was unable to perform field sobriety tests satisfactorily. Wysocki testified, and the video from his cruiser shows, that Miles lost his
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