State v. Quezada
20 Neb. Ct. App. 836
Neb. Ct. App.2013Background
- Quezada was convicted of third-offense aggravated DUI with a breath test result of .174.
- DataMaster breath test was the basis for the conviction; State presented calibration and maintenance evidence showing proper functioning.
- Quezada moved for appointment of an expert at State expense under § 27-706; the trial court denied the motion.
- Defense sought an expert to testify about DataMaster margin of error and absorption/excretion effects.
- The State introduced Brady’s testimony regarding calibration and maintenance procedures, not an expert rebutting the margin of error.
- Appellate court affirmed the conviction and sentence, ruling no abuse of discretion in denying the expert motion and finding no ineffective assistance of counsel given the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of the § 27-706 motion was an abuse of discretion | Quezada—indigent; needs expert on DataMaster margin of error | State—no abuse; evidence showed proper functioning and prima facie case | No abuse; prima facie case established per Kuhl; lack of remedyed flaws in proposed testimony |
| Whether trial counsel was ineffective | Quezada—counsel failed to preserve issues and obtain expert | State—counsel cross-examined thoroughly; no prejudice shown | No ineffective assistance; record shows meaningful adversarial testing and lack of prejudice |
| Whether sentence within statutory limits should be disturbed | Quezada—sentence excessive given record | State—fifth DUI; dangerous driver; punishment within discretion | No abuse of discretion; sentence affirmed |
| Whether DataMaster margin of error testimony is required to rebut prima facie case | Quezada—Vasiliades testimony needed to raise margin-of-error issue | State—margin-of-error evidence not required; trial court properly evaluated prima facie case | Not required; court followed Kuhl and did not need Vasiliades' testimony |
| Whether Brady's testimony was improper or prejudicial | Brady's testimony permissible; not expert on margin of error; did not compel exclusion of Vasiliades; no prejudice shown |
Key Cases Cited
- State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008) (Neb. 2008) (breath test prima facie case; margin of error not required to be proven by State; defenses must overcome prima facie)
- State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993) (Neb. 1993) (threshold showing of necessity for expert assistance; affidavits may support motion)
- State v. Turco, 6 Neb. App. 725, 576 N.W.2d 847 (1998) (Neb. App. 1998) (context for expert funding and necessity standard)
- United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (U.S. 1984) (presumption of unreliability when counsel entirely fails to assist)
- State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998) (Neb. 1998) (policy on ineffective assistance claims; framework for review)
- State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994) (Neb. 1994) (indigent defense and expert appointment standards)
- State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007) (Neb. 2007) (review of ineffective-assistance-on-direct-appeal principles)
- State v. Losinger, 268 Neb. 660, 686 N.W.2d 582 (2004) (Neb. 2004) (sentence within statutory limits; abuse of discretion standard)