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State v. Kanarick7/23/1999
urine."
"Refusal to submit to such test or tests is a separate crime for which you may be charged."
"I have 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 trooper directed Kanarick to take a blood test, and Kanarick refused. Thereafter, Kanarick was transported to the Dawes County jail, booked, and released."
A review of the record shows that on September 17, 1997, the State initially filed a three-count complaint against Kanarick. Count I alleged Kanarick was guilty of driving under the influence , see Neb. Rev. Stat. § 60-6,196 (Reissue 1993); count II alleged Kanarick refused to submit to a preliminary breath test, see § 60-6,197(3); and count III alleged Kanarick refused to submit to a chemical test, see § 60-6,197(2). Kanarick entered a plea of not guilty to all counts on December 3. Count I was dropped by the State at trial.
At some point in the county court proceedings, Kanarick evidently made an oral motion to suppress his statements to the trooper and, in the absence of such evidence, a motion to dismiss for lack of evidence. In this regard, we note that the clerk's certificate of May 6, 1998, issued by the county court clerk in connection with the transmission of the record from county court to district court, states that the transcript does not contain Kanarick's motion to suppress and that
" fter a diligent search of this case file, the Defendant's Motion to Suppress is not part of the case file. After conferring with David E. Veath [Kanarick's counsel] and Judge James Hansen it appears that this Motion to Suppress may have been an oral motion."
We further note that the record does not contain a motion to quash or a demurrer.
A hearing on Kanarick's motion to suppress in county court was conducted on March 4, 1998, following which the motion was denied. At the hearing, Kanarick's counsel argued, inter alia, that form DMV-01-01/revised 2/96 did not provide Kanarick with adequate notice of the criminal and administrative consequences of refusing to take a chemical test and that § 60-6,197(10) was unconstitutional.
Section 60-6,197(10) provides:
"Any person who is required to submit to a chemical blood, breath, or urine test or tests pursuant to this section shall be advised that refusal to submit to such test or tests is a separate crime for which the person may be charged."
As noted, the motion to suppress was denied.
The case was tried to the county court on April 8, 1998, on stipulated facts. By agreement of the parties, the State amended its complaint against Kanarick, dismissing count I and amending counts II and III by interlineation. At trial, Kanarick reasserted his oral motion to suppress. The motion was again denied, and Kanarick was found guilty of the allegations contained in counts II and III of the amended complaint. Thereafter, Kanarick was sentenced to pay a $100 fine on count II and to 1 year's probation on count III.
Kanarick appealed to the district court. Kanarick's statement of errors cited, inter alia, the county court's denial of his motion to suppress as a basis for appeal. The district court, sitting as an appellate court, conducted a hearing on September 1, 1998, at which Kanarick challenged, inter alia, the constitutionality of § 60-6,197(10). Following the hearing, the district court affirmed the county court's judgment in all respects. This appeal followed.
ASSIGNMENT OF ERROR
On appeal, Kanarick has assigned three errors which can be summarized as one. Kanarick claims that the district cour
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