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State v. Turner5/17/2002
The appellant, Jim R. Turner, was convicted in county court for driving under the influence of alcohol, refusing to submit to a chemical test, and refusing to submit to a preliminary breath test for alcohol. The district court affirmed. On appeal, he argues that Neb. Rev. Stat. § 60-6,197(10) (Reissue 1998) is unconstitutional because the advisement by the arresting officer was inadequate and violated his right to due process. Under § 60-6,197(10), the arresting officer was required to advise Turner that a refusal to submit to a chemical test is a separate crime for which he could be charged. Turner was so advised. We affirm.
BACKGROUND
On March 7, 1999, Stanley Osterhoudt, the Johnson County sheriff, received a dispatch about an incident which occurred in Cook, Nebraska. Osterhoudt was told that a man was lying in the street and that two people involved in the incident had left in a 1980 blue Chevrolet pickup truck with county plates numbered 64. As Osterhoudt drove toward Cook, he observed a truck matching that description.
Osterhoudt stopped the truck and identified the driver as Turner, observing that Turner's eyes were bloodshot and watery. He also detected an odor of alcohol coming from the truck.
Osterhoudt asked Turner to exit the truck and observed him stagger and sway as he got out of the truck. He handcuffed Turner and placed him in his patrol vehicle. He asked Turner about the incident in Cook, and Turner replied that he did not know about the incident. Osterhoudt observed that Turner's speech was slurred and delayed. He also noticed a strong odor of alcohol emanating from Turner.
Turner refused to submit to field sobriety tests and a preliminary breath test. Osterhoudt testified that he believed Turner was under the influence of alcohol. He testified that he then placed Turner under arrest and read him a post-arrest chemical test advisement form. The advisement form stated that refusal to submit to a chemical test is a separate crime for which the suspect may be charged. Turner refused to submit to a chemical test.
Turner was charged with driving under the influence of alcohol, refusing to submit to a chemical test, and refusing to submit to a preliminary breath test for alcohol. Before trial, he filed a plea in abatement alleging that he was arrested and then refused a chemical test. Without being specific, he contended that the post-arrest advisement was constitutionally infirm. Turner then filed a motion to quash, alleging that the advisement was a misrepresentation. He also filed a demurrer and a motion to suppress the chemical test.
Regarding the advisement, the county court addressed only due process considerations and overruled the plea in abatement, motion to quash, demurrer, and motion to suppress the chemical test results. The county court concluded that there was no constitutional right to refuse to submit to a chemical test or to be warned that a refusal could be used against the driver at trial. The court determined that any right to be warned of the consequences of a refusal was purely statutory. The court further concluded that an amendment to § 60-6,197(10) removed the need to advise a driver of the consequences for refusing to submit to a chemical test.
Turner next filed a second motion to suppress, alleging that the sheriff unconstitutionally stopped him. The motion was overruled. At the start of trial, Turner objected to the proceedings based on those asserted in his previous motions. The county court overruled the objection. During trial, Turner moved for a directed verdict at the end of the State's case. Turner then testified and did not renew his motion for a directed verdic
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