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State v. Robinson1/29/2002
1. Blood, Breath, and Urine Tests. There are four foundational requirements which the State must establish to put the results of a breath test into evidence: (1) The testing device was properly working at the time of testing, (2) the person administering the test was qualified and held a valid permit, (3) the test was properly conducted under the methods stated by the Department of Health and Human Services, and (4) all other statutes were satisfied.
2. Blood, Breath, and Urine Tests: Evidence: Proof. Reasonable proof that an Intoxilyzer machine was accurate and functioning properly is all that is required as foundation evidence.
3. Drunk Driving : Evidence: Proof. Alcohol-related violations of Neb. Rev. Stat. § 60-6,196 (Reissue 1998) may be proved by establishing either that one was in actual physical control of a motor vehicle while under the influence or by establishing that one was in actual physical control of a motor vehicle while having more than the prohibited amount of alcohol in his or her body.
4. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed only if the sentence complained of is an abuse of discretion.
Appeal from the District Court for Douglas County: Patricia A. Lamberty, Judge. Affirmed.
I. INTRODUCTION
Lamont A. Robinson appeals from his conviction and sentence for fourth-offense driving under the influence (DUI). On appeal, Robinson asserts that the trial court erred in receiving the results of an Intoxilyzer test without sufficient foundation, that the trial court erred in convicting him without sufficient evidence, and that the trial court erred in imposing an excessive sentence. We find no merit to any of these assigned errors, and accordingly, we affirm.
II. BACKGROUND
On February 17, 2000, an information was filed charging Robinson with DUI. On February 24, Robinson pled not guilty. On October 6, Robinson waived his right to be tried by a jury, and the case proceeded to a bench trial commencing on November 29.
Officer Scott Gray of the Omaha Police Department testified that he was on patrol with his partner, Officer Charles DiDonato, on February 15, 2000. Gray testified that the officers observed a vehicle stopped in an alley where there were signs posted indicating there was to be "no stopping, standing or parking, either side, any time."
Gray testified that the lights of the stopped vehicle were " ff." The officers ultimately approached the vehicle and observed that "it had a taillight lens on the left side that was broken" and "displayed white light to the rear." Based on the broken taillight and the vehicle's being parked in a no-parking area, the officers made contact with the driver of the vehicle.
Gray testified that the driver initially identified himself as Sim Robinson, but that the officers eventually discovered his correct name to be Lamont Robinson. Gray testified that upon contact with Robinson, Gray " oticed some signs of intoxication, including red glassy eyes and slurred speech and strong odor of alcoholic beverage." DiDonato testified that he also observed signs of intoxication, including "bloodshot glassy eyes."
DiDonato testified that he asked Robinson to submit to field sobriety tests. DiDonato related to the court his background and training to administer such tests, including that he had administered field sobriety tests " everal dozen times" before.
DiDonato testified that prior to having Robinson submit to any field sobriety tests, he asked Robinson if he was on any medication or had any physical impairments which would affect Robinson's performance on th
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