 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Vasquez1/21/2003
R>
The duty rests on the defendant, after his or her motion to suppress has been denied, to object to the admission of the evidence at trial and to state the specific grounds of the objection if not apparent from the context in which the objection was made. State v. Bray, 243 Neb. 886, 503 N.W.2d 221 (1993). On appeal, the defendant may not assert a different ground for his or her objection to the admission of evidence than was offered to the trier of fact. Id. Accordingly, we conclude that Vasquez has failed to preserve for appeal any issue with respect to the constitutional questions raised in his motion to suppress. This assignment of error is without merit.
Motion to Dismiss.
Vasquez asserts that the district court erred in failing to sustain his motion to dismiss. Vasquez argues essentially that there was insufficient evidence to show that he was operating or in actual physical control of the motorcycle. At the time of Vasquez' conviction, § 60-6,196(1) provided that
t shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
(a) While under the influence of alcoholic liquor or of any drug;
(b) When such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood; or
(c) When such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath.
The Nebraska Supreme Court has held that the word "operate," as used in this section, refers to the actual physical handling of the controls of the vehicle while under the influence of intoxicating liquor. State v. Baker, 236 Neb. 261, 461 N.W.2d 251 (1990). The Supreme Court has also held that starting a vehicle is an act within the meaning of "operating" a motor vehicle under § 60-6,196(6) (operating motor vehicle while license revoked). State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001).
Vasquez argues that at best, the evidence shows that he was touching the throttle of the motorcycle immediately before the accident. Vasquez argues this was not sufficient evidence to submit the issue of whether he was operating or in actual physical control of the motorcycle to the jury because manipulating the throttle without the clutch engaged would not cause the motorcycle to move and Vasquez would not have known that Steinmark was going to let go of or "pop" the clutch lever.
The Nebraska Supreme Court has upheld DUI convictions in several cases without direct evidence that the defendant had physically handled the controls of the vehicle. See,State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996) (defendant found behind wheel of vehicle parked on interstate off ramp with engine running and headlights on); State v. Miller, 226 Neb. 576, 412 N.W.2d 849 (1987) (defendant was under influence of alcohol, had no clear recollection of events leading up to accident, and was sole occupant of vehicle, which was stopped sideways in road, blocking traffic); State v. Eckert, 186 Neb. 134, 181 N.W.2d 264 (1970) (defendant was sole occupant of vehicle, defendant was slumped over steering wheel in drunken stupor, and vehicle was found parked in right-hand lane of public highway).
We find the circumstantial evidence sufficient in the present case to find that Vasquez was operating or in actual physical control of the motorcycle within the meaning of § 60-6,196. The evidence seems clear that the motorcycle was running prior to the accident and that Vasquez was in control of at least the throttle. The motorcycle and Vasquez traveled down the sidewalk for 57 feet from a poi
Page 1 2 3 4 5 6 7 8 9 Nebraska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|