State v. McIntyre
290 Neb. 1021
| Neb. | 2015Background
- At ~2:30 a.m. police stopped Joshua McIntyre for erratic driving; officer observed signs of intoxication and arrested him for DUI.
- At the testing center McIntyre provided a breath sample on a DataMaster that timed out and printed "DEFICIENT SAMPLE, INCOMPLETE TEST," but the printout also showed a breath-alcohol value of .218.
- The arresting officer recorded "Refused" on the department checklist because the device indicated a deficient sample; the technician testified the machine was maintained and working and that a deficient sample yields a reliable minimum value.
- The information was amended (without a quash) to allege alternatively that McIntyre had a BAC ≥ .15 or that he refused the chemical test; jury convicted on DUI and found BAC ≥ .15; two prior DUI convictions produced felony enhancement.
- McIntyre moved in limine to exclude the numeric result from the deficient sample and later orally asked the court to require the State to elect between the .15 theory and refusal theory; both motions were denied. He was sentenced to 365 days and license revocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of numeric result from a "deficient" breath sample | McIntyre: regs prohibit including numeric results from deficient samples on official record, so such results are inadmissible | State: permitting exclusion would let bad-faith testers defeat proof; deficient-sample values are scientifically probative as minimums | Court: Admissible if State lays statutory foundation; regs construed to allow use of deficient-sample numeric result as evidence of a minimum BAC when foundational requirements are met |
| Requirement that State elect between BAC ≥ .15 theory and refusal theory | McIntyre: charging/trying inconsistent alternative theories prejudices defendant and statutory scheme doesn't allow both | State: alternative theories are permissible ways to prove the single offense | Court: Election motion waived (no timely motion to quash); alternative theories may be alleged in single count and no prejudice shown |
| Sufficiency of evidence to support DUI and enhancement | McIntyre: evidence insufficient given deficient sample | State: officer observations + .218 (deficient sample) + prior convictions suffice | Court: Evidence sufficient; viewing facts most favorably to prosecution a rational factfinder could convict |
| Excessiveness of sentence | McIntyre: probation appropriate due to treatment completion and obligations | State: trial court within discretion given recidivism and risk | Court: Sentence within statutory limits and not an abuse of discretion |
Key Cases Cited
- Liddell-Toney v. Department of Health & Human Servs., 281 Neb. 532 (2011) (statutory/regulatory interpretation principles)
- Morrissey v. Department of Motor Vehicles, 264 Neb. 456 (2002) (administrative checklist and record procedures for breath tests)
- State v. Kuhl, 276 Neb. 497 (2008) (foundational elements required for admissibility of breath-test evidence)
- State v. Baue, 258 Neb. 968 (2000) (reversal where device did not print required record card and device operation foundation lacking)
- State v. Robbins, 253 Neb. 146 (1997) (principles for construing penal statutes)
- State v. Thacker, 286 Neb. 16 (2013) (penal statute construction guidance)
- State v. Brouillette, 265 Neb. 214 (2003) (alternative theories and proofs for single statutory offense)
- State v. Hale, 282 Neb. 70 (2015) (standard for sufficiency review)