State v. Foster4/15/2003
(Not Designated for Permanent Publication)
After being observed "smoking the tires " on his car and fishtailing while turning a corner, Jason R. Foster was stopped, charged, and eventually convicted of driving under the influence of alcohol; reckless driving, second offense; and driving during suspension. He appeals, claiming that there was insufficient evidence to support his convictions.
FACTUAL AND PROCEDURAL BACKGROUND
Foster's bench trial for the above-listed charges occurred in the county court for Douglas County, Nebraska, on December 10, 2001. At the beginning of the trial, Foster's attorney made a motion to suppress evidence and statements of Foster, based on a lack of probable cause for the traffic stop by Officer Kenneth Oetter on May 18, 2001. The trial court heard the motion. Oetter, after testifying that he had been an Omaha police officer for nearly 13 years, related the events of the stop. The court overruled the motion to suppress and then asked, "Are you ready for the trial? . . . Can we incorporate the previous testimony?" A voice answered, "Yes, Judge. So incorporated," but the court reporter did not identify the speaker in the bill of exceptions beyond "unidentified male voice." We assume that the speaker was likely the prosecutor. But, in any event, Foster's attorney objected at trial to incorporating the testimony from the hearing on the motion to suppress. The court sustained the motion and did not "incorporate" Oetter's suppression hearing testimony.
The trial began, and on direct examination, the State questioned Oetter about the events of May 18, 2001. Oetter testified that at 12:30 a.m., he saw a Corvette stopped at a red light at 102d and Blondo Streets. When the light turned green, the driver accelerated very quickly, " etting the clutch out very quickly and smoking the tires , causing the car to fishtail and nearly striking the curb as it turned westbound onto Blondo Street." Oetter testified that the traffic was light and that no vehicles other than Oetter's cruiser were close to the Corvette, although there were vehicles going eastbound on Blondo Street as the Corvette's driver headed westbound.
After Oetter stopped the car, he approached the car and noticed that the driver's breath emitted an odor of alcohol, that his fine motor skills appeared impaired, and that his eyes were somewhat glassy and bloodshot. Oetter asked the driver, Foster, for a driver's license. Foster produced a Nebraska employment driving permit. Oetter ran a data check and found that Foster's driver's license was suspended. Oetter asked Foster to perform field sobriety tests.
Oetter testified that Foster successfully performed the alphabet test, reciting the letters E through P, as Oetter had directed, in a smooth, steady, rapid rate. Oetter asked Foster to count backward by ones from 93 to 64. Foster did so successfully until he reached the number 67, when he went back to 68 and then stated, "67, 66, 65, 64, 64." He then asked, "Isn't that it?"
Foster then performed the one-legged stand, but according to Oetter, Foster was unable to keep his hands at his sides as directed--he used his arms for balance, and he was "hopping" to maintain balance on one leg. No details about the "hopping" were elicited.
Oetter also asked Foster to do the walk-and-turn test, in which Foster was directed to stand with his feet heel-to-toe and his fingers along his pants seams. Oetter directed Foster to take nine steps forward, touching each step heel-to-toe, take a pivot step, and then take nine steps back to the point of origin. Foster took 10 steps instead of 9, could not keep his balance while listening to Oetter's directions
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