State v. Cornwell
294 Neb. 799
| Neb. | 2016Background
- On Feb. 20, 2014, Chancey A. Cornwell was arrested and charged with driving under the influence (DUI) and refusing to submit to a chemical test (breath test).
- Postarrest chemical test advisement form indicated the officer directed a breath test and contained language that an officer “may direct that more than one test be given.”
- Cornwell withdrew a not-guilty plea and moved to quash the information, arguing a facial constitutional challenge to Neb. Rev. Stat. §§ 60-6,197 and 60-6,197.03(6) for criminalizing withdrawal of consent to searches and for aggravating penalties for exercising that right.
- The district court denied the motion to quash; Cornwell was convicted by a jury of both DUI and refusal, sentenced to 2–5 years’ imprisonment, and his license revoked for 15 years.
- Cornwell appealed, arguing the statutes and the advisement form violated the Fourth Amendment and Neb. Const. art. I, § 7, because a warrant was not obtained for the chemical test and the statutes criminalize withdrawing consent.
- The Nebraska Supreme Court considered Cornwell’s facial challenge in light of the U.S. Supreme Court’s decision in Birchfield v. North Dakota distinguishing breath and blood tests for Fourth Amendment purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Neb. Rev. Stat. §§ 60-6,197 and 60-6,197.03(6) are facially unconstitutional for criminalizing withdrawal of consent to chemical tests | Cornwell: statutes criminalize/penalize withdrawal of consent, violating the Fourth Amendment and state constitution | State: statutes valid because warrantless breath tests are reasonable under the Fourth Amendment | Court: statutes not facially unconstitutional; Birchfield allows warrantless breath tests, so some valid applications exist |
| Whether the postarrest advisement form is ambiguous or unconstitutional (facial or as-applied) | Cornwell: form’s language (may direct more than one test) makes a reasonable motorist uncertain which tests may be compelled | State: only a breath test was requested here; no warrantless blood/urine test was performed | Court: as-applied challenge fails (only breath test requested, which is permissible); facial challenge fails for same reason — breath tests valid under Birchfield |
Key Cases Cited
- State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (Neb. 2007) (standard of review for motions to quash on questions of law)
- State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (Neb. 2011) (facial-challenge principles; procedure for constitutional challenges via motion to quash)
- State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (Neb. 1999) (motion to quash as proper method to challenge constitutionality of a statute)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (distinguishes breath tests—permissible without a warrant—from blood tests—warrant required)
- State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (Neb. 1986) (Nebraska interpretation of state constitutional protection as coextensive with U.S. Fourth Amendment)