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State v. Rogman1/20/2004
(not designated for permanent publication)
INTRODUCTION
Rex A. Rogman appeals from an order of the district court for Johnson County affirming the county court's order which convicted Rogman of driving under the influence of alcohol and found Rogman not guilty of driving without lights on his trailer. For the reasons set forth below, we affirm.
BACKGROUND
In a complaint filed August 8, 2001, the State charged Rogman with driving under the influence of alcohol, first offense, under Neb. Rev. Stat. § 60-6,196 (Cum. Supp. 2000) and with a violation of the State's motor vehicle light requirements under Neb. Rev. Stat. § 60-6,219(1) (Reissue 1998). On September 5, Rogman filed a motion to suppress, stating in part that the officer's stop and seizure of his person and his vehicle were "not based on a reasonable and articulable suspicion that a crime had [been] or was about to be committed, or that the driver or vehicle w unlicen ed in violation of [Rogman]'s rights under the Fourth and Fourteenth Amendments to the United States Constitution."
On October 31, 2001, the trial court held a hearing on Rogman's motion to suppress. At that hearing, the parties stipulated that Rogman's motion to suppress would be limited to whether Rogman was stopped or seized in violation of his constitutional rights.
At that hearing, Johnson County Deputy Sheriff Robert Hester testified that he was working as an on-call officer on July 15, 2001. Hester testified that at approximately 7:38 p.m., he got a call from another deputy acting as a dispatcher. Hester testified that the dispatcher informed him of a possible drunk driver who was driving south on Sterling-Douglas Road in a white pickup pulling a trailer. Hester testified that initially he could not locate the white pickup and that he decided to check on a different vehicle that had been left in a ditch nearby.
Hester testified that when he found the vehicle in the ditch, there were several other vehicles at that location, including the white pickup he had been looking for earlier. Hester observed that the people present were attempting to get the vehicle out of the ditch. Hester testified that he remained at that location, watching the proceedings, for approximately 45 minutes.
Hester testified that eventually all of the vehicles left, including the white pickup, which he knew to be Rogman's from previous contacts. Hester testified that as Rogman left, Hester followed Rogman and observed Rogman pull over and stop. Hester testified that he noticed that the trailer Rogman was pulling had no working lights at all. Hester testified that as Rogman was about to back up, Hester stopped behind Rogman. Hester stated that he backed up his patrol car so that he could get his video camera directed toward Rogman's pickup. Hester testified that he did not activate his emergency lights at any time.
Hester testified that Rogman immediately exited his pickup and "fell back toward the [pickup] a little bit." Hester testified that Rogman swerved as he walked toward Hester's patrol car.
Hester testified that he then exited his patrol car and asked Rogman why Rogman's trailer lights were not working. Hester stated that Rogman replied that he knew his lights were broken and showed Hester the frayed wires on the trailer. Hester testified he was in close proximity to Rogman at that time and noticed that Rogman's eyes were red and watery, that Rogman's speech was slurred, and that there was a moderate odor of alcohol on Rogman's breath. Hester testified that he asked Rogman whether Rogman had been drinking and that after some hesitation, Rogman stated that he had had five drin
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