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State v. Foster4/15/2003
process of obtaining a dissolution of her marriage, drove her automobile across the road and struck her husband's vehicle coming from the opposite direction. Immediately after the impact, she told her estranged spouse that she would run into him "'again and again.'" Id. at 719, 325 N.W.2d at 160.
The statute under which Foster was charged, § 60-6,213, requires proof only of "an indifferent or wanton disregard for the safety of persons or property." (Emphasis supplied.) Oetter testified that when the red light at 102d and Blondo Streets turned green, Foster accelerated his car "under extreme circumstances." Foster let the clutch out very quickly, "smok the tires ," and caused the car to fishtail, nearly striking the curb. While Oetter testified that there were no vehicles close to Foster's car at the time, he did testify that traffic was coming eastbound on Blondo Street as Foster drove westbound. And, Foster had a passenger, obviously a "person" under § 60-6,213. Given our standard of review, we determine there clearly is sufficient evidence of "indifferent disregard" and reckless driving to support the conviction.
Driving Under Influence of Alcohol.
Finally, Foster argues that because the trial court erred in receiving the preliminary breath test results over his objection and erred in allowing Oetter's opinion over Foster's objection, there was insufficient evidence to support Foster's conviction for driving under the influence of alcohol.
Neb. Rev. Stat. § 60-6,196(1) (Cum. Supp. 2000) provides:
It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
(a) While under the influence of alcoholic liquor or of any drug;
(b) When such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood; or
(c) When such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath.
The State is also required to prove that Foster was in actual physical control of a motor vehicle. See State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000). There was obviously sufficient proof of this element. As used in § 60-6,196(1)(a), the phrase "under the influence of alcoholic liquor or of any drug" means the ingestion of alcohol or drugs in an amount sufficient to impair to any appreciable degree the driver's ability to operate a motor vehicle in a prudent and cautious manner. State v. Falcon, supra. See State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991). Either a law enforcement officer's observations of a defendant's intoxicated behavior or the defendant's poor performance on field sobriety tests may constitute sufficient evidence to sustain a conviction of driving while under the influence of alcoholic liquor. Id.
The State concedes that admission of the preliminary breath test in this case was erroneous. Reasonable proof that a breath-testing machine was accurate and functioning properly is all that is required as foundational evidence for admission of a preliminary breath test. State v. Lowrey, 239 Neb. 343, 476 N.W.2d 540 (1991). No such testimony was offered, and thus, it was error for the court to admit the results of Foster's preliminary breath test.
To establish reversible error, the appellant must show that trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence in a case tried without jury. State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000). In announcing its judgment after the bench trial, the co
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