State v. Pester
294 Neb. 995
| Neb. | 2016Background
- Shortly after midnight, Deputy Still found Richard Pester slumped in the driver’s seat of a vehicle parked in a closed farm-implement dealership lot; keys were in the ignition, brake lights had flashed, and alcohol containers were visible.
- Still smelled alcohol, observed bloodshot eyes and slurred speech, obtained a preliminary breath test of .126, and Pester failed field sobriety tests; Still arrested Pester for DUI.
- At the jail, Still read a postarrest chemical-test advisement; Pester refused to sign or submit to the breath test.
- The State charged Pester with DUI and refusal to submit to a chemical test (both second offenses).
- Pester moved to quash the refusal charge as unconstitutional and moved to suppress evidence, arguing no probable cause because he was on private property not open to the public; both motions were overruled, he was convicted by a jury, and the district court (on appeal) affirmed.
Issues
| Issue | Pester's Argument | State's Argument | Held |
|---|---|---|---|
| Validity of criminalizing refusal to submit to a warrantless breath test | § 60-6,197 violates Fourth and Fourteenth Amendments; no right to be compelled | Warrantless breath test as search incident to lawful arrest is constitutional post-Birchfield | Court: Breath tests incidental to lawful DUI arrest are permissible; prosecution for refusal constitutional (Birchfield controls) |
| Lawfulness of arrest / probable cause for DUI | Arrest lacked probable cause because Pester was on private property not open to public access and thus § 60-6,196 didn’t apply | Officer observed indicators of impairment, keys in ignition, brake lights flash, public-accessible lot—totality supports probable cause | Court: Probable cause existed; lot was private property open to public access; arrest lawful; suppression correctly denied |
| Whether property was “private property open to public access” under § 60-6,108 | Lot was private and not open to public access (business closed; atypical parking location) | Lot bordered by public highways, no gates/locks, public could drive onto lot to enter dealership—open to public access | Court: Lot qualified as private property open to public access; prior case law supports finding |
| Sufficiency of evidence for DUI and refusal convictions | Evidence insufficient because no proof of public access and thus statutory elements not met | Officer’s observations, PBT result, failed field tests, keys in ignition, and refusal provided sufficient evidence | Court: Viewing evidence in light most favorable to prosecution, rational jury could find elements beyond a reasonable doubt; convictions upheld |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (warrantless breath tests incident to lawful DUI arrest do not violate the Fourth Amendment)
- State v. Cornwell, 884 N.W.2d 722 (Neb. 2016) (applied Birchfield to uphold Nebraska refusal statute as to breath tests)
- State v. Rask, 883 N.W.2d 688 (Neb. 2016) (distinguishing "actual physical control" from "operating"; broad interpretation to prevent imminent operation)
- State v. Matit, 846 N.W.2d 232 (Neb. 2014) (probable cause where vehicle parked in area permissibly used by residents and nonresidents)
- State v. McCave, 805 N.W.2d 290 (Neb. 2011) (residential driveway not open to public access)
- State v. Prater, 686 N.W.2d 896 (Neb. 2004) ("open to public access" means public has permission or ability to enter)
- State v. Gonzales, 884 N.W.2d 102 (Neb. 2016) (standard for reviewing sufficiency of evidence in criminal convictions)