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State v. Dudney11/12/2002
(not designated for permanent publication)
INTRODUCTION
David A. Dudney appeals from a district court order that affirmed his conviction for driving under the influence of alcohol (DUI), first offense. For the reasons set forth herein, we affirm the judgment of the district court.
BACKGROUND
On September 11, 2000, Dudney was charged in the county court for Kimball County, Nebraska, with DUI, first offense, pursuant to Neb. Rev. Stat. § 60-6,196 (Cum. Supp. 2000), a Class W misdemeanor, and assault in the third degree, pursuant to Neb. Rev. Stat. § 28-310(1)(a) (Reissue 1995), a Class I misdemeanor. Dudney was subsequently arraigned and pled not guilty to both charges.
The charges resulted from a domestic dispute between Dudney and his then girl friend, Shellie Monday, which had occurred on August 27 and the subsequent investigatory stop of Dudney, which led to his arrest for DUI. On that date, Monday and her children (including her child with Dudney) were living with Dudney in Kimball County. Dudney was working with his father on that day, but he came home around 2:30 p.m. to give Monday $26 to buy food.
When Monday told Dudney that this was not enough money for her to purchase food and diapers, Dudney took the money and left the house. Dudney returned around 9 p.m. According to Monday, Dudney appeared drunk. Monday testified at trial that Dudney's eyes were red, that Dudney could hardly stand, and that she could smell the odor of alcohol on Dudney's breath. Monday attempted to discuss various household matters with Dudney, which discussion led to the altercation on which the assault charge was based. Because Dudney was acquitted of the assault charge, the details of the altercation are unimportant except to the extent that Monday's version and the physical evidence led law enforcement officials to arrest Dudney for assault and, as a result thereof, also arrest him for DUI. Dudney ultimately left the house, driving away in a white Chevrolet four-wheel-drive pickup.
Monday called the 911 emergency dispatch service, and Sheriff Marvin Jensen came to the Dudney residence to investigate, arriving at about 9:30 p.m. Monday told Jensen that an altercation had occurred, that Dudney had choked her, and that Dudney had been drinking. Jensen observed a broken lamp on the floor and observed marks on Monday's neck. After investigating at the home for 15 to 20 minutes, Jensen asked Monday to go with him to the sheriff's office so that he could obtain her written statement and take pictures of her injuries.
Monday went with Jensen in his patrol car, and while they were traveling westbound on Highway 30, a pickup came from the south and turned east onto the highway. Monday told Jensen, "That's the vehicle." Monday had previously described the pickup to Jensen, and the pickup that turned onto the highway matched her description.
Jensen turned the patrol car around to make a stop of the pickup. Jensen stopped the pickup because he did not want Dudney to return to the residence, where there were children, and because he intended to arrest Dudney for assault. Jensen did not observe any traffic violations on Dudney's part prior to stopping the pickup, and Dudney pulled over right away after Jensen turned on the patrol car's overhead lights.
Upon making contact with Dudney, Jensen observed that Dudney smelled of alcohol and that his eyes were bloodshot. Jensen also observed that Dudney had had a nosebleed, and Jensen had been informed by Monday that she had struck Dudney's nose accidentally during the course of their altercation. Jensen testified that Dudney told him that he had argued with Monday ov
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