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State v. Dudney11/12/2002
er money and that he had had four or five beers after leaving the house the first time. Dudney denied telling Jensen he had consumed four or five beers, but claimed that he had had one beer before going to the house at 2:30 p.m. and two additional beers before returning to the house that evening.
Jensen administered field sobriety tests that were observed by Officer Bryan Woods of the Kimball Police Department. Jensen did not administer a preliminary breath test because Dudney had placed "a chew" of tobacco in his mouth. Jensen felt that Dudney performed relatively well on the field sobriety tests, passing the tests in Jensen's judgment, while Woods was somewhat more critical in his assessment of Dudney's performance. Both Jensen and Woods observed Dudney weave or sway somewhat during the "Rhomberg balance maneuver," which required Dudney to tip his head back while standing with his eyes closed. During the one-legged stand test, Jensen observed that Dudney's balance was good, although he "might have dropped a foot once." Woods testified that he observed Dudney put his foot down twice while performing this test.
The third test administered to Dudney was the nine-step walk-and-turn test, during which Dudney was to walk for nine steps, touching the heel of one foot to the toe of the other foot with each step; to turn around; and to walk back. Jensen indicated that while Dudney's balance was again "pretty good" on this test, Dudney did not quite touch his heel to his toe with each step, and that Dudney turned around after only eight rather than nine steps at Jensen's request. Woods testified that Dudney performed eight steps, none of which was heel to toe as instructed, and then turned around.
Jensen testified that he arrested Dudney for DUI based upon Dudney's own admissions, the information he received from Monday that Dudney had been drinking, and the fact that Dudney had bloodshot eyes, smelled of alcohol, appeared intoxicated, and seemed to be under the influence of alcohol. Jensen testified that in his experience, it was possible for someone to pass a field sobriety test or to drive without any traffic violations and still "be over the legal limit." After arresting Dudney, Jensen requested Dudney to submit to a blood test to determine his body-fluid alcohol content, to which test Dudney consented. Dudney was transported by Woods to a hospital, where the blood test was conducted. Woods noted Dudney's slurred speech while sitting in Woods' patrol car and again at the hospital when Dudney was talking to a nurse. Exhibit 7, the result of this blood test, indicates that Dudney's blood alcohol content was .123 grams per 100 milliliters of blood. The trial court granted a motion by Dudney for retesting of the blood sample, but the results of any such retesting were not proffered at trial.
Dudney filed a motion to suppress, which was overruled, and a jury trial was conducted on January 12, 2001. Following the trial, the jury found Dudney not guilty of third degree assault, but guilty of DUI, first offense. Dudney filed a motion for new trial, which was overruled. The county court sentenced Dudney to probation for a period of 1 year, imposed a $400 fine, and revoked Dudney's driving privileges for 60 days with credit given for any administrative license revocation. Dudney appealed to the district court for Kimball County, which affirmed the decision of the county court. This appeal timely followed.
ASSIGNMENTS OF ERROR
Dudney asserts, combined and restated, that the district court erred in failing to find error in the county court's rulings (1) denying his motion to suppress, (2) permitting testimony from law enforcement officials regarding whether
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