State v. Montoya
305 Neb. 581
| Neb. | 2020Background:
- On March 12, 2017 Trooper Michael Thorson stopped Lorenzo Montoya after radar showed 50 mph in a 35 mph zone and he observed the vehicle cross the centerline; Thorson smelled alcohol and saw signs of impairment.
- Thorson administered field sobriety tests (HGN while seated, walk-and-turn); Montoya failed; a preliminary breath test read .176 and he was arrested; a certified DataMaster breath test about an hour after his last drink read .134.
- DataMaster calibration within 40 days used wet-bath simulator solutions from RepCo; original certificates listed the wrong tester (Alma Palmer); RepCo later issued amended certificates listing Colby Hale (no other changes).
- Montoya moved to suppress (1) evidence from the stop (lack of reasonable suspicion), (2) evidence from the arrest (lack of probable cause), and (3) DataMaster results (foundation, hearsay, Confrontation Clause). County court denied all motions; jury convicted; sentence: 180 days jail, $1,000 fine, 15-year license revocation; district court affirmed; appeal to Nebraska Supreme Court.
- At sentencing the court noted two prior DUI convictions and postoffense charges; Montoya cited recent diagnosis and employment efforts; he argued the sentence was excessive.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether stop was supported by reasonable suspicion | Officer had radar reading of 50 in 35, good Doppler tone, and observed crossing centerline — sufficient minimal objective justification | Thorson failed to record a preradar visual speed estimate; radar could theoretically malfunction, so stop lacked reasonable suspicion | Stop was lawful: radar reading and circumstances gave reasonable suspicion; suppression denied |
| Whether arrest was supported by probable cause | Officer observed multiple sobriety-test failures, odor of alcohol, preliminary breath .176 — collectively established probable cause | HGN administered while seated (contrary to manual), lack of video of HGN, and subject burped during observation period undermined HGN and preliminary breath test, so no probable cause | Defendant waived trial objection to arrest (no contemporaneous trial objection); district/county courts found probable cause; suppression denied as preserved claims failed |
| Admissibility of DataMaster results (foundation; amended certificates; Confrontation Clause) | Calibration occurred within 40 days; amended RepCo certificates corrected clerical name error and provided satisfactory maintenance foundation; certifications are routine business records and non‑testimonial, so Confrontation Clause not implicated | Original certificates misidentified tester; title 177 does not explicitly authorize amended certificates and requires the certificate to “accompany” solution — amended certificates created later violate foundation and deny confrontation (Hale unavailable) | Amended certificates cured clerical error and provided satisfactory proof of required calibrations; certificates are non‑testimonial business records — Confrontation Clause not violated; DataMaster results admissible |
| Sufficiency of evidence and excessiveness of sentence | With admissible DataMaster result (.134) plus field observations and tests, evidence supports DUI conviction; sentence within statutory range and judge did not abuse discretion | Without DataMaster result evidence is insufficient; 180-day sentence is excessive given treatment efforts, no injuries, and cooperation | Evidence sufficient (DataMaster admissible); sentence within statutory limits and not an abuse of discretion; judgment affirmed |
Key Cases Cited
- State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019) (two-part standard for reviewing suppression rulings)
- State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018) (standard for reviewing sufficiency of evidence in criminal cases)
- State v. Krannawitter, 939 N.W.2d 335 (2020) (amended calibration certificates can provide independent foundation for breath-test results)
- Terry v. Ohio, 392 U.S. 1 (1968) (investigatory stops require reasonable suspicion)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (distinguishing testimonial from nontestimonial forensic certificates for Confrontation Clause)