State v. Troyer7/29/2003
Not Designated for Permanent Publication
INTRODUCTION
Stephen J. Troyer appeals his conviction and sentence for first-offense driving under the influence . Pursuant to this court's authority under Neb. Ct. R. of Prac. 11B(1) (rev. 2000), this case was ordered submitted without oral argument. For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
A complaint was filed on November 30, 2001, charging Troyer with driving under the influence . The matter came on for trial on May 1, 2002, in the Seward County Court.
Milford police officer Chad Craghead testified that on November 16, 2001, at approximately 1 a.m., he was operating a marked police vehicle and observed a Chevrolet S-10 pickup truck traveling eastbound on U.S. Highway 6 at F Street in Milford, Nebraska. Craghead followed the vehicle and observed that the driver failed to use a turn signal when turning left. Craghead activated his overhead emergency lights and stopped the vehicle. Upon making contact with the driver, whom Craghead identified as Troyer, he observed that Troyer's eyes were bloodshot and watery, that his breath had a strong odor of alcohol, and that Troyer had difficulty getting his license out of his wallet. Craghead asked Troyer if he had consumed any alcoholic beverages, and Troyer responded that he had had three beers.
Craghead testified that he performed several field sobriety tests upon Troyer. Craghead first asked Troyer to recite the alphabet from "L" to "P." Troyer replied, "L to P . . . ind of tricky . . . L, F, G, H, P . . . L to P . . . H, I, J, K, L, M, N, O, P, Q, R, S, T, U, L O, V." Craghead told Troyer to start with the letter "L." Troyer then recited from "L" to "P" with no difficulty. Craghead next asked Troyer to recite the entire alphabet. Troyer said the letters "A" through "S" with no difficulty, then said, "U, M, P," paused for a moment, and finally said, "W, X, U, Y, Z."
Craghead testified that he then performed the horizontal gaze nystagmus test upon Troyer. Craghead observed that a lack of smooth pursuit was present in both of Troyer's eyes, that nystagmus at the maximum deviation was present in both eyes, and that Troyer also had a vertical nystagmus in each eye. Craghead testified that he had received training and certification on how to perform the horizontal gaze nystagmus test. According to Craghead, based upon his education, training, and practical experience, it was his opinion that Troyer failed the test.
Craghead testified that he then had Troyer perform the walk-and-turn test. He observed the following: that Troyer was unable to keep his balance while Craghead was giving him instructions, that Troyer started before Craghead had finished giving the instructions, that Troyer missed the heel-to-toe walk once in his first nine steps and three times during his next nine steps, that Troyer stepped off the line once during his first nine steps and three times during his next nine steps, that Troyer performed the entire test with his arms stretched outward, and that Troyer failed to make the instructed turn. Craghead then attempted to have Troyer perform the one-legged stand test; however, Troyer said that his back was hurting and that he was unable to perform the test. Craghead skipped that test and had Troyer perform the Romberg test in which Troyer was instructed to stand with his feet together, arms at his side, head tilted back, and eyes closed while estimating a period of 30 seconds. Craghead observed that Troyer's estimation of 30 seconds was actually closer to 38.52 seconds. Craghead also observed that Troyer had an approximate 2-inch circular sway of his body during the test.
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