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State v. Vasquez1/21/2003
(not designated for permanent publication)
(Not Designated for Permanent Publication)
INTRODUCTION
Ronnie L. Vasquez appeals from his conviction in the district court for Buffalo County, Nebraska, for driving under the influence of alcohol (DUI), which was enhanced to that for a third-offense DUI. For the reasons set forth herein, we affirm.
BACKGROUND
On June 19, 2001, Vasquez was charged with DUI, fourth subsequent offense, a Class IV felony pursuant to Neb. Rev. Stat. ยง 60-6,196(2)(d) (Cum. Supp. 2000). Vasquez was also charged with one count of driving under license revocation imposed for DUI, but this count was dismissed by the court during the course of trial. The charges resulted from an accident which occurred in Kearney, Nebraska, on March 24.
On that date, Kearney police officer David Humphrey was dispatched to investigate an accident allegedly involving a motorcycle. Upon arriving at the scene, Humphrey observed two individuals kneeling next to a man who was lying on the ground just outside of a local bar. Humphrey recognized the man lying on the ground as Vasquez, whom he knew from previous contacts, but did not see a motorcycle or any other vehicle that may have been involved in the purported accident. Humphrey observed that Vasquez appeared to have injuries to his left wrist, the back of his head, and his mouth area. Humphrey also observed scrape marks on the ground and what appeared to be an oilspill approximately 5 to 10 feet south of Vasquez.
Cpl. Brian Schoenhoefer, another officer that responded to the accident call, helped administer first aid to Vasquez and smelled the odor of alcohol on Vasquez. Vasquez was transported by ambulance to a hospital for treatment of his injuries. Humphrey initiated a DUI investigation at the hospital after also detecting a strong odor of alcohol coming from Vasquez. Humphrey read Vasquez a post-arrest chemical test advisement form. Vasquez indicated to Humphrey that he understood the form and that he would submit to a blood test. Vasquez was not physically able to sign the form, however, as he was incapacitated by his injuries. Humphrey then observed Jerry Milligan, a medical technologist at the hospital, draw blood from Vasquez. Vasquez' blood was tested by Sharon Klingelhoefer, another medical technologist at the hospital, who testified over objection that Vasquez' alcohol content was .22 grams of alcohol per 100 milliliters of blood.
Schoenhoefer and Officer Dennis Sesna investigated at the accident scene. A single black tire mark on the sidewalk outside the bar, measuring 57 feet in length and approximately 4 inches in width, ran north and south on the sidewalk, beginning near the front door of the bar and ending by a nearby building. Scuff marks were observed on the building, approximately 3 to 4 feet above the ground. Motorcycle parts and fluid were on the sidewalk south of the building and south of where Vasquez had been lying. Sesna located a motorcycle in a nearby shop owned by Eric Steinmark, which motorcycle had damage to the handlebar and mirror.
Steinmark, an acquaintance of Vasquez, told police that he had repaired a motorcycle owned by Vasquez and that on March 24, 2001, he took the motorcycle to the bar to show Vasquez. Steinmark testified that he had started the motorcycle and was standing on the left-hand side of the motorcycle, handling the clutch lever, while Vasquez was standing on the right-hand side of the motorcycle with his hand on the throttle. Steinmark indicated that the clutch "popped," or suddenly engaged, while Vasquez had hold of the throttle and that the motorcycle lunged forward, pulling Vasquez with it until
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