State v. Corbin8/7/2001
(not designated for permanent publication)
Appeal from the District Court for Sarpy County, George A. Thompson, Judge, on appeal thereto from the County Court for Sarpy County, Robert C. Wester, Judge. Judgment of District Court affirmed.
INTRODUCTION
Linda J. Corbin appeals from an order of the district court for Sarpy County affirming the judgment of the county court for Sarpy County finding Corbin guilty of driving under the influence of alcoholic liquor (DUI), third offense. We affirm.
BACKGROUND
Corbin was arrested for DUI in Sarpy County, Nebraska, on June 20, 1999. The criminal complaint charged Corbin with DUI, third offense, in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 1998). The complaint alleged that Corbin had been previously convicted of DUI on June 29, 1989, in Douglas County, Nebraska, and on June 13, 1997, in Sarpy County. Corbin pled guilty to the charge.
An enhancement hearing was held on February 3, 2000, to determine if the offense should be enhanced to a DUI third offense. The State offered three exhibits, and all three were received. Exhibit 1 shows a DUI arrest or citation date of February 28, 1989, and a DUI conviction and sentencing date of June 29 for Linda J. Scott-Barnes in Douglas County. The date of birth of Linda J. Scott-Barnes is shown as October 9, 1963, and her driver's license number is G01-244795. In addition, three of the six pages that make up exhibit 1 refer to the defendant as "Scott-Barnes, Linda J AKA: Barnes, Linda J." The exhibit is certified by the Douglas County Court. Defense counsel did not specifically object to exhibit 1, but questioned "whether that applied or not."
Exhibit 2 is a certified copy of a DUI conviction of Linda J. Corbin in Sarpy County. Exhibit 2 shows a citation or arrest date of December 18, 1996, and a conviction and sentencing date of June 13, 1997. Defense counsel did not object to exhibit 2.
Exhibit 3 is a certified copy of Linda J. Corbin's driving record from the Department of Motor Vehicles. It shows her date of birth as October 9, 1963, and her driver's license number as G01244795. It also shows two previous citations and convictions for DUI. The first one shows a citation date of February 28, 1989, and a judgment date of June 29. The second DUI citation date is shown as December 18, 1996, and the judgment date is June 13, 1997. Exhibit 3 was admitted over Corbin's objection on relevance and foundation. Defense counsel offered no evidence at the enhancement hearing.
Based on the evidence presented by the State, the trial court enhanced the offense to a third-offense DUI. Corbin was sentenced to probation for 24 months, which included a $600 fine, a jail sentence of 88 days, and suspension of her driver's license for 1 year. Corbin appealed to the district court for Sarpy County, which affirmed the decision of the trial court. This appeal followed.
ASSIGNMENT OF ERROR
Corbin assigns, condensed and restated, that the district court erred in affirming the trial court's finding that there were two valid prior convictions to enhance the offense to a third-offense DUI.
STANDARD OF REVIEW
In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility. State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999); State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999). Because exercise of judicial discretion is implicit in Neb. Evid. R. 401, Neb. Rev. Stat. § 27-4
Page 1 2 3 4 Nebraska DUI Attorneys
DUI Lawyers
|