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State v. Dudney11/12/2002
I and therefore could not require the statutorily authorized blood test from Dudney. Specifically, Dudney argues that since he had committed no traffic infraction prior to the stop and had "passed" the field sobriety tests, there was no indication that he was impaired to justify his arrest. Brief for appellant at 16. The Nebraska Supreme Court has held that "a police officer's opinion testimony, based on personal observations of the defendant, is sufficient to sustain a finding that the defendant operated a motor vehicle when the defendant was under the influence of alcohol." State v. Tanner, 233 Neb. 893, 895, 448 N.W.2d 586, 588 (1989). "'As used in [§ 60-6,196], the phrase "under the influence of alcoholic liquor" means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner.'" 233 Neb. at 895, 448 N.W.2d at 588.
Under the facts of this case, Jensen had the statement from Monday that Dudney was drunk when he returned to the Dudney residence on the evening in question and Jensen was aware that Dudney had been involved in a domestic disturbance. Jensen observed Dudney driving the pickup, observed that Dudney's eyes were bloodshot, and smelled the odor of alcohol about Dudney's person. Dudney also admitted to drinking alcohol during the day and evening prior to the stop. Although Dudney performed relatively well on the administered field sobriety tests and passed the tests in Jensen's judgment, both Jensen and Woods observed signs suggesting some degree of balance impairment during Dudney's performance of these tests, including Dudney's weaving slightly during one of the tests, dropping a foot once or twice during another test, and failing to walk heel to toe as instructed during the third test. 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." Jensen determined that Dudney appeared intoxicated. The evidence was sufficient to show impairment under the totality of the circumstances. We conclude that there was sufficient probable cause to arrest Dudney for DUI without a warrant and then administer the blood test, as Jensen had reasonable grounds to believe that Dudney was driving a motor vehicle while under the influence of alcoholic liquor. See, Larson v. Jensen, 228 Neb. 799, 800, 424 N.W.2d 352, 354 (1988) (finding totality of circumstances supported holding that deputy had reasonable grounds to believe that defendant was operating motor vehicle while under influence of alcohol and to arrest him where defendant admitted consuming five or six beers, exhibited "'borderline'" performance on field sobriety tests, and expressed desire to go to jail after initial arrest for speeding); State v. Halligan, 222 Neb. 866, 387 N.W.2d 698 (1986) (finding probable cause for warrantless arrest for DUI where defendant's breath smelled of alcohol, his eyes were bloodshot, and his speech was slurred and sheriff believed defendant's body would metabolize alcohol such that evidence of intoxication would be lost unless defendant were arrested). We further conclude that the county court did not err in denying Dudney's motion to suppress.
False Reporting by Monday.
Dudney asserts several assignments of error in relation to law enforcement reports concerning false reporting by Monday. Dudney asserts that the county court erred in denying his motion for discovery of law enforcement reports involving Monday as a witness or victim of other incidents unrelated to the present matter and reports relating to Monday's "prior" arrest for false reporting. Dudney further asserts that the
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