State v. McCumber
295 Neb. 941
| Neb. | 2017Background
- On June 8, 2013, Officer Jensen observed Ricky McCumber driving; after stopping him for driving with an expired license, Jensen detected signs of intoxication (odor of alcohol, bloodshot/watery eyes, slurred speech) and McCumber admitted drinking.
- Jensen requested field sobriety tests and a preliminary breath test (PBT); McCumber refused the field sobriety tests and the PBT and was arrested; at the hospital McCumber also refused a postarrest blood draw.
- McCumber was charged with refusal to submit to a chemical test (blood), refusal to submit to a PBT, and driving without a license; DUI was later dismissed and the remaining counts proceeded to a stipulated bench trial.
- Pretrial, McCumber moved to quash and to suppress, arguing Nebraska statutes criminalizing refusal to submit to warrantless blood or PBT searches were unconstitutional (facial and as-applied), citing Fourth and Fifth Amendment concerns.
- The district court denied suppression and the motion to quash; McCumber was convicted on the three counts and sentenced (including probation for refusal to submit to chemical test). He appealed.
- The Nebraska Supreme Court applied Birchfield v. North Dakota and Cornwell, upheld the PBT statute as constitutional, but held § 60-6,197 (chemical-test implied-consent statute) unconstitutional as applied to McCumber (blood draw without warrant or exigency), vacating that conviction and remanding for resentencing on remaining counts.
Issues
| Issue | Plaintiff's Argument (McCumber) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Is Neb. Rev. Stat. § 60-6,197 (implied-consent chemical test statute) facially invalid under the Fourth Amendment? | § 60-6,197 compels blood tests in all cases and is therefore facially unconstitutional. | § 60-6,197 permits breath tests and has valid applications; not facially invalid. | Not facially invalid — statute has applications (e.g., breath tests, exigent circumstances) that are constitutional. |
| 2. Is § 60-6,197 unconstitutional as applied to McCumber for the warrantless blood draw? | The warrantless blood draw violated his Fourth Amendment rights; criminalizing refusal penalizes assertion of the right. | Concedes Birchfield requires a warrant for blood; therefore conviction should be vacated as applied. | Vacated as applied — conviction for refusing blood test reversed because no warrant or exigency justified the blood draw. |
| 3. Does § 60-6,197(6) permit admission of testimonial refusal in violation of the Fifth Amendment? | Admission of testimonial refusal offends Fourth and Fifth Amendments. | (State response not assigned as separate error on appeal.) | Not considered — issue not assigned as error on appeal. |
| 4. Is § 60-6,197.04 (PBT statute) facially or as-applied unconstitutional because it permits compelled testing without probable cause? | PBT statute allows compelled test on pain of criminal penalty without probable cause — unconstitutional. | PBTs are like field sobriety/Terry stops; reasonable when officer has specific articulable facts. | Upheld — PBT statute constitutional facially and as applied; officer had reasonable grounds to administer PBT. |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (distinguishing breath and blood tests; breath tests may be administered incident to arrest but blood tests generally require a warrant)
- Missouri v. McNeely, 133 S. Ct. 1552 (natural dissipation of alcohol does not create a per se exigency; exigency analysis is case-by-case)
- Schmerber v. California, 384 U.S. 757 (exigent-circumstance precedent allowing warrantless blood draw in narrow circumstances)
- State v. Cornwell, 294 Neb. 799 (Nebraska Supreme Court rejecting facial challenge to § 60-6,197 and applying Birchfield principles)
- State v. Prescott, 280 Neb. 96 (held PBTs may be administered on reasonable, articulable suspicion akin to a Terry stop)