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State v. Luebbert4/6/2004
(not designated for permanent publication)
INTRODUCTION
Daniel Luebbert was convicted in county court of driving while under the influence of alcohol (DUI), a Class W misdemeanor in violation of Neb. Rev. Stat. § 60-6,196 (Cum. Supp. 2000), and possession of marijuana, less than 1 ounce, an infraction of Neb. Rev. Stat. § 28-416(13) (Cum. Supp. 2000). Luebbert appeals, arguing that neither the preliminary breath test nor other information in the possession of the arresting officer at the time of Luebbert's arrest established probable cause for the arrest and that, therefore, neither the result of the chemical breath test administered later, the marijuana found on his person when he was booked for DUI, nor his statements were admissible in evidence at his trial. Luebbert argues, inter alia, that the trial court erred in denying his motions to suppress such evidence and in overruling his objection to its admission at trial. The district court affirmed both convictions. We conclude that there was not probable cause for Luebbert's arrest and that therefore, such evidence should have been suppressed. Accordingly, we reverse, and remand for a new trial.
BACKGROUND
Luebbert was charged in the county court for Dodge County with DUI and possession of marijuana, less than 1 ounce. He filed two motions to suppress. In one motion, Luebbert alleged that any evidence gathered subsequent to his arrest--including the observations of officers, Luebbert's own statements, and the chemical breath test result--was inadmissible due to lack of probable cause for the arrest. The other motion alleged that statements made by Luebbert to the arresting officer after Luebbert's arrest were not admissible, because Luebbert had not been properly advised of his Miranda rights and because his statements were involuntary.
Deputy Dustin Weitzel, a patrol officer for the Dodge County sheriff's office and the arresting officer in this case, testified at the hearing on the motions to suppress.
According to Weitzel's testimony, at approximately 7 p.m. on March 9, 2001, a Ford LTD driven by Luebbert collided with a minivan on a highway in Dodge County. Mary Becker, the driver of the minivan, was proceeding westward when she crested a hill and encountered some deer standing on and near the highway. Becker applied the brakes to stop the minivan; Luebbert, whose vehicle was also westbound, struck the minivan from behind while attempting to stop. No one was injured. Law enforcement officials were notified, and Weitzel arrived at the scene of the accident at approximately 7:38 p.m.
Weitzel testified that shortly after his arrival, he interviewed Becker in his cruiser while Luebbert waited in his own vehicle. The interview lasted 15 to 20 minutes.
About 8 p.m., Weitzel spoke to Luebbert alone in Weitzel's cruiser. During the conversation, Weitzel detected an "odor from an alcoholic beverage emitting from Luebbert's person, slight slurred speech, and some bloodshot eyes." Weitzel testified that at this point, he initiated a DUI investigation.
Weitzel asked Luebbert about Luebbert's alcohol consumption prior to the accident. Luebbert stated that he had consumed three 12-ounce bottles of beer at a birthday celebration that evening. Weitzel then administered three field sobriety tests. He asked Luebbert to recite the alphabet, to count backward from 75 to 57, and to perform a finger dexterity maneuver. Luebbert performed all three tests satisfactorily.
Weitzel testified that he next administered a preliminary breath test. The State's attorney asked Weitzel to state the result of the test, and defense counsel objected based on "
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