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State v. Dudney11/12/2002
is court, Dudney simply asserts that there is insufficient foundation in the record to permit Woods to "offer his opinions offered regarding impairment." Brief for appellant at 17. It is firmly established in this jurisdiction that a law enforcement officer is competent to testify that in his or her opinion, a defendant was driving while intoxicated, after sufficient foundation is laid. See State v. Cash, 3 Neb. App. 319, 526 N.W.2d 447 (1995). See, also, State v. Lichti, 219 Neb. 894, 367 N.W.2d 138 (1985); State v. Johnson, 215 Neb. 391, 338 N.W.2d 769 (1983). Such "sufficient foundation" routinely includes the officer's observation of the defendant's performance on field sobriety tests such as those employed in the present case. See, State v. Lichti, supra; State v. Cash, supra.
In State v. Johnson, supra, the Nebraska Supreme Court reiterated the rules concerning what foundation is required for a police officer to testify as to his or her opinion concerning a defendant's intoxication. The court indicated that if the officer qualifies as an expert witness, he or she is entitled to render an opinion even without first giving the underlying basis of the opinion. See, also, Neb. Rev. Stat. § 27-703 (Reissue 1995). The opinion of an expert witness need only have a sound and reasonable basis. See State v. Johnson, supra. The court in Johnson further indicated that if the officer is considered a lay witness, he or she can, nevertheless, render an opinion regarding a defendant's intoxication, provided the officer first details the facts upon which his or her opinion is based. In this regard, the opinion must be rationally based on the perception of the witness and be helpful to a clear understanding of the officer's testimony. Id.
In the present case, Woods, employed by the Kimball Police Department since August 1999, testified that he received training in the administration of field sobriety tests at the Nebraska Law Enforcement Training Center between January and March 2000. Woods testified that the Rhomberg balance test, the one-legged stand test, and the nine-step heel-to-toe test were all field sobriety tests for which he received training and that this training included what observations to make during the tests' administration. Woods testified further that the act of putting a foot down was something he was taught to look for during the administration of the one-legged stand test, that he was taught that this was an indication of impairment of a person's balance, and that he was taught that a person's balance when performing field sobriety tests could be affected by prior injuries or alcohol. We conclude that sufficient foundation was established for Woods' testimony. The county court did not err in allowing this testimony by Woods.
Evidentiary Rulings.
Dudney asserts that the county court erred in making certain evidentiary rulings. Dudney again asserts that the county court erred in overruling his objection to the testimony by Woods, which assertion was addressed in the preceding section. Dudney next asserts that the court erred in sustaining an objection by the prosecution when Dudney tried to explore an inconsistency between the testimony of Jensen and the testimony of Woods. A review of the testimony at issue reveals that Woods was being asked whether his testimony or Jensen's testimony was correct. The prosecution objected and correctly observed that Woods could testify only as to what he saw. This objection was properly sustained by the trial court.
Finally, Dudney asserts that the court improperly ruled and commented on two objections made by the prosecution during the recross-examination of Woods by defense counsel. The questions, objections, an
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