State v. Kanarick7/23/1999
that it is "beyond question that a motion to suppress is the appropriate remedy to exclude evidence which has been obtained through" a flawed process. State v. Utterback, 240 Neb. 981, 985, 485 N.W.2d 760, 766 (1992), overruled on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W. 2d 108 (1999). Under §§ 29-115 and 29-822, a motion to suppress must be made in writing with certain statutory exceptions not relevant here. See, also, State v. Donald, 199 Neb. 70, 256 N.W.2d 107 (1977). The record in this case indicates that the motion to suppress was not made in writing. Most importantly, a motion to suppress does not challenge the validity of the entire proceedings. See, generally, 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.1(b) (1984); State v. Utterback, supra.
" As noted above, our review is hampered by the absence from the record of any written motions relevant to this appeal. It is incumbent upon an appellant to supply a record which supports his or her appeal." Sindelar v. Hanel Oil, Inc., 254 Neb. 975, 581 N.W.2d 405 (1998).
The only indications we have of the matters raised at trial and the relief requested are the oral arguments presented to the county and district courts. To the extent the record exists, it indicates that Kanarick has waived his constitutional challenge to § 60-6,197(10).
In his brief filed with this court, Kanarick relies on his motion to suppress as the basis upon which he brings his constitutional challenge. Consistent with his position that the constitutionality of § 60-6,197(10) was challenged in the context of his motion to suppress, Kanarick directs us to the following dialog at trial between the county court and counsel for Kanarick regarding Kanarick's purported constitutional objection.
MR. VEATH [defense counsel]: . . . "I wish to object to these proceedings by reason of the Court's overruling the motion to suppress."
". . . We are, therefore, objecting to this trial, objecting to this proceeding, and objecting to all facts in evidence, however, for the purpose of object to the statement of Mr. Kanarick saying no when he was asked if he would take a blood test?"
MR. VEATH: "Yes, Your Honor."
THE COURT: "For the reason of the motion to suppress?"
MR. VEATH: "Yes, Your Honor."
From our review of the record, it is apparent that Kanarick raised his constitutional challenge to § 60-6,197(10) as an incident to his motion to suppress rather than as a motion to quash or other approved method for facially challenging the validity of a statute. A motion to suppress is not an appropriate procedure by which to bring a facial challenge to the constitutional validity of a statute, and because Kanarick entered a plea, Kanarick has waived any constitutional objections he may have had to the statute. Accordingly, we do not consider the merits of Kanarick's constitutional challenge on appeal. See State v. Carpenter, 250 Neb. 427, 551 N.W.2d 518 (1996).
CONCLUSION
In this appeal, Kanarick claims that § 60-6,197(10) is invalid on its face. The proper procedure by which to raise a facial constitutional challenge is by either a motion to quash or a demurrer filed initially in the trial court. Kanarick filed neither a motion to quash nor a demurrer and entered a plea. Consequently, he has waived his constitutional objections to the statute. Accordingly, the judgment of the district court, affirming the convictions and the sentences of the county court, is affirmed.
Affirmed.
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