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State v. Foster4/15/2003
, and did not touch his feet heel-to-toe on the first step. Oetter testified that he then called for an Alco-Sensor test. An Officer Liddick, who did not testify, came to the scene and gave Foster a field breath test. When the State asked whether Foster failed or passed the test, Foster's attorney objected as to foundation. The court overruled the objection, and Oetter testified that Foster failed the test. Oetter testified that he placed Foster under arrest, took him to a hospital, and required him to submit to a chemical blood test. No results are in evidence.
According to Oetter, on the way to the hospital, Foster spontaneously "made a statement to the effect that, you know, what's wrong with him a guy stopping a quote, titty bar, and having a few beers after work?"
On cross-examination, Oetter testified that on the walk-and-turn test, Foster's first step revealed pavement--more than an inch and less than 6 inches--between his heel and toe. In addition, Oetter testified that there was another individual present in the vehicle. Foster's attorney moved for a directed verdict on the driving during suspension, driving under the influence of alcohol, and reckless driving charges, which motion was overruled.
Foster then testified that on May 17, 2001, he worked at ConAgra from 8 p.m. until midnight and then took Tony Baud home. According to Foster, it was his responsibility to provide workers to complete the project on a "swing shift" like the one he worked that night, so he was responsible for providing transportation. Foster testified that while driving Baud home, Foster was still "on the clock. . . . I'm not done with work until I got everything taken care of and that includes getting employees to and from their destination if required by my employer , which at this time was required."
Foster testified that he was driving straight to Baud's house--and had made no stops after work--when Oetter stopped him within a "couple blocks" of Baud's home. Foster testified that from Baud's home, he was going to return straight to his own home. Baud did not testify.
Foster admitted that instead of maintaining a safe, steady speed as he turned the corner, he accelerated quickly, and that his tires did spin and the car did pitch a little to the side. He corrected the turn and took his foot off the accelerator, and then he saw Oetter's lights behind him. Foster denied stopping at any bars and did not recall making a statement about going to a "titty bar," but said that if he had made such a statement, he was making small talk and being sarcastic. On cross-examination, Foster testified that he had no timesheets to show that he had worked until midnight that night, but he could provide them if necessary. He also testified that he did have two or three beers that night at work as he and other crew members cleaned up the project site.
The trial court found Foster guilty on all charges and sentenced him to probation for 1 year and a $500 fine. The court ordered Foster to obtain an evaluation for chemical dependency and to abstain from drinking alcohol during his probation.
Foster appealed to the district court for Douglas County, claiming that there was insufficient evidence to support the convictions, insufficient foundation for Oetter's opinion, and insufficient foundation for the preliminary breath test evidence. The court affirmed Foster's convictions and sentences. Foster appeals.
ASSIGNMENTS OF ERROR
Foster claims that the trial court erred in receiving the preliminary breath test results over his objection, in allowing Oetter's opinion over Foster's objection, and in finding Foster guilty beyond a reasonable do
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