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State v. West4/16/2002
(not designated for permanent publication)
Appeal from the District Court for Nemaha County: Daniel Bryan, Jr., Judge. Affirmed.
INTRODUCTION
Mark E. West was convicted by a jury in the district court for Nemaha County, Nebraska, of operating or having actual physical control of a motor vehicle while under the influence of alcohol, in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 1998). Because this was West's fourth such offense, the district court sentenced him to 20 to 24 months' incarceration as well as a $1,000 fine and revocation of his driver's license for 15 years. For the reasons set forth below, we affirm the judgment of the district court.
FACTUAL BACKGROUND
In the early morning hours of December 20, 1998, Nemaha County Deputy Sheriffs Brent Lottman and Robert Sandersfeld, each sitting in marked patrol cars, observed a vehicle driven by West accelerate past them on a highway in Brock, Nebraska, in excess of the speed limit. Although Lottman pursued the vehicle for several blocks, eventually activating his patrol car's overhead red lights, West did not stop until he pulled into a residential driveway. Upon making contact with West, Lottman immediately noticed a strong odor of alcohol coming from West. West admitted he had consumed a couple of alcoholic drinks.
Lottman administered several field sobriety tests to West, including a horizontal gaze nystagmus (HGN) test. Lottman testified that HGN refers to an involuntary jerking of the eyeball, a condition that can be caused by alcohol consumption. Lottman explained that the test is performed by holding a stimulus such as a pen or other object 12 to 15 inches from an individual's face at slightly above eye level and then moving the stimulus and watching as the individual's eyes follow it. If HGN is present, the eyes will not follow the stimulus smoothly. HGN will begin to manifest itself when the eyes are looking as far to the side of the head as they will go. Lottman stated that "the higher the amount of intoxicants in the bloodstream, the sooner the nystagmus will start or the lesser the angle." Lottman further explained that the test is scored by assessing one point, or indicator, for each part of the test that is failed, with a resulting maximum score of six points. Lottman stated he learned through his education and training that 77 percent of individuals will be over a blood alcohol level of .1 gram per 100 milliliters of blood when HGN testing shows four or more indicators. Lottman testified that he observed all six indicators when he tested West.
Because West claimed to have bad knees, Lottman did not administer the walk-and-turn test or the one-legged stand test. However, he did administer the finger-to-nose and finger dexterity tests and also asked West to recite the alphabet. Lottman stated that West performed none of the tests satisfactorily. Lottman testified that in his opinion, based on his training and experience, West was under the influence of alcohol. Lottman cited West's speeding in the presence of two marked patrol cars, his failure to pull to the side of the road when pursued, the odor of alcohol on him, and his inability to pass the field sobriety tests, including the HGN test. Lottman stated that his opinion was based on the combination of these factors, not any particular observation.
Lottman arrested West and transported him to the law enforcement building in Auburn, Nebraska, for a breath test utilizing an Intoxilyzer 4011AS. Lottman testified that he followed the rules and regulations set out in title 177 of the Nebraska Administrative Code, beginning with a check of the maintenance and calibration log to ensure the Intox
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