 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Foster4/15/2003
he had ingested alcohol in an amount that impaired to an appreciable degree his ability to operate a motor vehicle in a prudent and cautious manner. For example, there is no evidence showing that the minor mistakes made by Foster while counting nearly 30 numbers backward equates to, or is evidence of, such impairment. In this connection, we cannot ignore that he recited that portion of the alphabet he was asked to recite. There is evidence of Foster's reckless driving, but "popping the clutch" on a Corvette does not necessarily mean intoxication--although with other properly admitted evidence, it could mean such. It could simply be volitional "showing off." In sum, Foster was not such an obviously drunken driver that we can rely merely on Oetter's observations of Foster to find sufficient evidence of driving under the influence of alcohol without evidence of Oetter's training and experience. And, we cannot use our own knowledge of the classic signs and symptoms from reviewing hundreds and hundreds of such cases to fill in the gaps in the State's proof.
The State argues that State v. Back, 241 Neb. 301, 488 N.W.2d 26 (1992), holds that opinion testimony is not needed. However, in Back, the court first noted that the violation of Neb. Rev. Stat. § 39-669.07 (Reissue 1988), operating a motor vehicle while under the influence of alcoholic liquor or with a concentration of ten-hundredths of 1 gram or more by weight of alcohol per 100 milliliters of blood or urine, is one offense which may be proved in one of several ways, citing State v. Parker, 221 Neb. 570, 379 N.W.2d 259 (1986). The evidence was that a blood sample taken from Back tested at .106 grams of alcohol per 100 milliliters of blood. A pathologist said that Back's blood alcohol content would have been at least .140 at the time of the accident. Back assigned error to the submission to the jury of "driving under the influence," but the court found that since no argument was made about the illegal concentration of alcohol in his blood, there was no prejudice in the submission of driving under the influence to the jury. Nonetheless, the Back court wrote considerable dicta about the facts and why the court would justify a conviction for driving under the influence. Included in that decision was evidence from a pathologist about the effect of various concentrations of alcohol on humans, including limitations on vision, judgment, perception, and reaction time. The Back court recounted how the accident happened and said that such facts show circumstantially the same limitations as related by the pathologist. Thus, we do not see that Back means that foundation is not needed for an opinion on intoxication, because the Back court's dicta relates the facts of the accident to the expert testimony.
We find that insufficient foundation was laid for Oetter's opinion that Foster was intoxicated and that therefore, the trial court erroneously admitted the opinion. Without such opinion, the evidence is clearly insufficient to support Foster's conviction for driving under the influence of alcohol.
CONCLUSION
Having found sufficient evidence to support Foster's reckless driving conviction and his conviction for driving during suspension, we affirm those convictions. We reverse Foster's conviction for driving under the influence of alcohol, because there is insufficient competent and admissible testimony in the record to support the conviction. Our review of the sentencing proceeding shows that Foster was placed on probation, in effect for all three crimes because various conditions of probation were not tied to specific crimes, nor were the fine and jail time. Therefore, it is just and appropriate that Foster be resentenced only on the
Page 1 2 3 4 5 6 7 Nebraska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|