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State v. Turner5/17/2002
t. The county court found Turner guilty on all counts.
The district court affirmed. The district court addressed only due process concerns regarding the advisement and agreed with the conclusions of the county court. Additionally, the district court factually found that Turner had been arrested before he was read the advisement. The court concluded that the sheriff had reasonable suspicion to stop Turner and request a preliminary breath test. The court also determined that there was sufficient evidence to convict him. Turner appeals.
ASSIGNMENTS OF ERROR
Turner assigns, rephrased, that the county court erred in (1) determining that the advisement was constitutional and overruling his plea in abatement, motion to quash, demurrer, motion to suppress chemical test results, and objection at the start of trial; (2) overruling his second motion to suppress; (3) finding that he had been arrested before being read the post-arrest advisement; (4) determining that the sheriff lawfully requested a preliminary breath test; and (5) determining there was sufficient evidence to convict him and overruling his motion for a directed verdict.
STANDARD OF REVIEW
Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court. State v. Hynek, ante p. 310, 640 N.W.2d 1 (2002).
ANALYSIS
Turner contends that the post-arrest advisement he was given was inadequate and violated his right to due process. Turner argues that the advisement fails to specifically state whether the suspect will actually be charged. He also argues that the advisement fails to advise of any civil penalties that may occur as a result of the refusal to submit to a chemical test.
Section 60-6,197(1) provides:
Any person who operates or has in his or her actual physical control a motor vehicle in this state shall be deemed to have given his or her consent to submit to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the concentration of alcohol or the presence of drugs in such blood, breath, or urine.
Under § 60-6,197(2), an officer may require a chemical test when he or she has reasonable grounds to believe that a defendant was driving under the influence of alcohol. Section 60-6,197(10) provides: "Any person who is required to submit to a chemical blood, breath, or urine test or tests pursuant to this section shall be advised that refusal to submit to such test or tests is a separate crime for which the person may be charged."
[2,3] We have held that the giving of a sample under § 60-6,197 does not involve a question of involuntariness, want of due process, or self-incrimination. See State v. Williams, 189 Neb. 127, 201 N.W.2d 241 (1972). Thus, a suspect's right to refuse a chemical test is a matter governed purely by statute. See South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). Accordingly, we address the question whether the advisement was adequate under § 60-6,197(10).
An earlier version of § 60-6,197(10) required that a suspect be advised of the "consequences" of refusing to submit to a chemical test. See § 60-6,197(10) (Reissue 1993). Applying the 1993 version of § 60-6,197(10), we held that a suspect must be advised of the civil penalties that could apply if he or she refused to submit to a chemical test. See Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995). The current version, however, requires only that a suspect be advised that "refusal to submit to such test or tests is a separate crime for wh
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