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State v. Kanarick7/23/1999
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law, with respect to which an appellate court has an obligation to reach a Conclusion independent of that of the trial court.
2. Constitutional Law: Statutes: Demurrer. 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. This court has repeatedly held that in order to bring a constitutional challenge to the facial validity of a statute, the proper procedure is to file a motion to quash or a demurrer.
3. Constitutional Law: Statutes: Pleas: Waiver. Once a defendant has entered a plea, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and thereafter files a motion to quash.
4. Motions to Suppress: Evidence: Dismissal and Non-suit. A motion to suppress, which merely seeks the exclusion of certain evidence, may not be used as a substitute for a motion to quash, which has as its objective the dismissal of the entire proceedings.
5. Records: Appeal and Error. It is incumbent upon an appellant to supply a record which supports his or her appeal.
6. Constitutional Law: Statutes: Motions to Suppress. A motion to suppress is not an appropriate procedure by which to bring a facial challenge to the constitutional validity of a statute.
Appeal from the District Court for Dawes County, Paul D. Empson, Judge, on appeal thereto from the County Court for Dawes County, James T. Hansen, Judge. Judgment of District Court affirmed.
NATURE OF CASE
Joseph J. Kanarick was convicted in the county court for Dawes County of refusal to submit to a preliminary breath test and refusal to submit to a chemical test, and was sentenced accordingly. The district court affirmed the convictions and sentences. Kanarick appeals. On appeal, Kanarick claims that Neb. Rev. Stat. § 60-6,197(10) (Cum. Supp. 1996) is unconstitutional. We conclude that Kanarick waived any and all facial constitutional challenges to the statute, and we affirm the judgment of the district court.
STATEMENT OF FACTS
The county court trial was conducted on a stipulated set of facts, from which we derive the following statement of facts: At approximately 1:45 a.m. on August 28, 1997, a Nebraska State Patrol trooper observed a vehicle driving on Main Street in Chadron, Nebraska. The vehicle "stopped long" at an intersection, blocking the crosswalk. After the light turned green, the vehicle proceeded south and was observed swerving in the roadway. The trooper stopped the vehicle, and the driver identified himself as Kanarick. The trooper smelled alcohol on Kanarick and observed that Kanarick's eyes were red and that he was speaking slowly. Kanarick admitted that he had consumed "six beers or so on the golf course." Kanarick failed three field sobriety tests administered to him by the trooper and when asked for his date of birth responded, "I have no idea." Kanarick refused to submit to a preliminary breath test. Kanarick was arrested.
After his arrest, the trooper read the post-arrest chemical test advisement to Kanarick from form "DMV-01-01/revised 2/96." Pursuant to this form, Kanarick was advised as follows:
"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 your blood, breath, or urine to determine the concentration of alcohol or drugs in your blood, breath, or
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