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State v. Vasquez1/21/2003
cretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id. A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id. A determination that a blood alcohol test was taken and properly performed as provided by statute generally rests within the discretion of the trial court and will not be reversed except for a clear abuse of discretion.State v. Green, 223 Neb. 338, 389 N.W.2d 557 (1986).
ANALYSIS
Motion to Suppress.
Vasquez asserts that the district court erred in failing to sustain his motion to suppress. On appeal, Vasquez argues that the police officers did not have reasonable grounds to believe that Vasquez was operating the motorcycle at the time of the accident and that thus, they could not legally arrest him or require him to submit to a chemical test of his blood. Vasquez sought to suppress the results of any chemical tests of his blood, asserting that the taking of his blood was in violation of the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution. Vasquez further sought to suppress the test results by asserting that the taking and testing of his blood were not done in compliance with Neb. Rev. Stat. §§ 60-6,197 and 60-6,201 (Cum. Supp. 2000) and title 177 of the Nebraska Administrative Code.
The district court overruled Vasquez' motion on October 24, 2001, following a suppression hearing. The court found that pursuant to § 60-6,197(9), the officers had reasonable grounds to believe that Vasquez was operating a motor vehicle on a public highway or street at a time when he was under the influence of alcoholic liquor and that Vasquez suffered injury as a result of an accident. The court found that the evidence was sufficient under § 60-6,197, the Nebraska implied consent law, for the officers to require a blood test to determine Vasquez' blood alcohol content. The court noted the issue raised by Vasquez of whether the blood was properly tested and thus admissible at the time of trial. The court granted Vasquez an additional 10 days to file a supplemental motion to specifically indicate his areas of concern and found that to the extent that specific issues were raised by Vasquez, the court would expect the State to proceed with the burden of offering evidence at the next scheduled hearing on November 2. The record before us does not contain any further motions that might have been filed by Vasquez; nor does it indicate that any additional hearings were held prior to trial on December 10 and 11. At trial, the district court overruled Vasquez' objections and admitted the blood test results into evidence.
The State argues that Vasquez has not preserved for appellate review the constitutional issues raised in his motion to suppress. A failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and that party will not be heard to complain of the alleged error on appeal. State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002). At trial, when the State attempted to introduce the test results into evidence, Vasquez' counsel objected on foundation, stating that there was no showing of compliance with title 177, or especially §60-6,201, "regarding the person drawing the blood" and that there was no compliance with the requirements ofState v. Hiemstra, 6 Neb. App. 940, 579 N.W.2d 550 (1998), with respect to controls. Vasquez made no specific objections at trial based on the constitutional questions raised in his motion to suppress.
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