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State v. Foster4/15/2003
urt stated as follows: "I can't see where the Officer did anything wrong. I appreciate the way he testified. He didn't exaggerate a bit. No question in my mind the defendant was under the influence of intoxicating liquors at the time and that his judgment and driving was impaired." Thus, it is clear that the court relied on Oetter's testimony, but not expressly upon the preliminary breath test. Accordingly, the error in admitting the breath test without proper foundation was not reversible error.
After sufficient foundation is laid, a law enforcement officer may testify that in his or her opinion, the defendant was driving while intoxicated. State v. Howard, 253 Neb. 523, 571 N.W.2d 308 (1997). Foundation for such an opinion includes both evidence of the officer's training and experience as well as the officer's observation of the defendant at the time of the alleged offense. For example, in State v. Howard, supra, the court found that sufficient foundation had been laid for the officer's opinion, because the officer testified that he had been trained to detect the mental and physical effects of alcohol on people and that he had been involved in the arrest of 150 to 200 intoxicated drivers. He also testified that the defendant was driving dangerously; smelled of alcohol; had watery eyes and slow, slurred speech; admitted he had been drinking; and twice failed in attempts to recite the alphabet. Id.
In State v. Cash, 3 Neb. App. 319, 526 N.W.2d 447 (1995), we found that there was sufficient foundation for an officer's opinion after he testified that he observed the defendant's vehicle crossing the centerline, that the defendant could not keep her balance as she walked, and that he detected the smell of alcohol on her breath. The officer also testified that he had been employed as a police officer for 2 years, had received training in investigating alcohol-related offenses, had observed others drink to the point of intoxication, and had performed 100 to 150 alcohol-related investigations.
In Foster's trial, Oetter's testimony from the hearing on the motion to suppress, which testimony contained evidence of his training, experience, and observations, was not incorporated into the trial. Accordingly, the only foundational testimony for Oetter's opinion was his testimony that he had been with and observed Foster from approximately 12:30 a.m. until after 2 a.m., plus the following testimony:
Q: And, sir . . . part of your training as a police officer and also as part of your experience are you around people who are under the influence of alcoholic beverages?
A: Yes, I am.
Q: Sir, did . . . Foster exhibit any of the signs of being under the influence?
A: Yes, he did.
Q: Sir, in your opinion -- did you reach an opinion as to whether . . . Foster was impaired that evening?
[Defense counsel]: I'm going to object as to foundation.
THE COURT: Objection is overruled.
A: Yes, I did feel that he was impaired and showed impairment, both, on my observation of his driving behavior and my personal observations of him at the time of field sobriety tests and during the field sobriety tests.
There is no testimony regarding the extent of Oetter's training or what he learned from being around intoxicated people. And while Oetter said that Foster exhibited "signs" of being under the influence, there was no testimony recounting such signs before Oetter's opinion.
While there was testimony that Foster had some problems, which appear to have been minor, with the field sobriety tests, there is no testimony connecting such problems to the key element of the crime--that
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