State v. Rask
294 Neb. 612
| Neb. | 2016Background
- In January 2014, Bruce V. Rask was found asleep in the driver’s seat of his pickup parked on a public road with the engine running; officer Jarvis Kring recognized him, roused him, and Rask admitted he was drunk.
- Rask had been drinking earlier that night (several beers), failed three field sobriety tests, smelled of alcohol, and a mostly empty beer can was found in the cab.
- Kring administered a preliminary breath test (PBT) (results not admitted) and requested a chemical blood test, which Rask refused; Kring did not give the statutory advisement required by Neb. Rev. Stat. § 60-6,197.
- The State charged Rask with DUI (third offense), refusal to submit to a chemical test (later dropped), and open container; a jury convicted him of DUI and open container, and the convictions were affirmed by the district court.
- On appeal to the Nebraska Supreme Court, Rask challenged admission of evidence about the PBT and his refusal, alleged prosecutorial misconduct and requested mistrial, and challenged two jury instructions (definition of "actual physical control" and omission of a choice-of-evils instruction).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Rask) | Held |
|---|---|---|---|
| Admissibility of evidence that a PBT was administered | PBT administration testimony is relevant background and harmless if error | Admission of PBT administration was inadmissible and prejudicial | Any error was harmless given abundant other evidence of intoxication; no reversal |
| Admissibility of testimony about refusal to submit to chemical test | Refusal testimony is admissible to prove DUI and demeanor even if advisement was not given | Refusal inadmissible because officer failed to give § 60-6,197 advisement | Refusal evidence admissible; statute permits use of refusal to prove DUI even if advisement absent |
| Prosecutorial misconduct / mistrial based on PBT and refusal evidence | No misconduct; evidence properly admitted or harmless | Introduction of PBT/refusal amounted to misconduct requiring mistrial | No misconduct/mistrial: underlying evidentiary rulings upheld or harmless |
| Jury instruction defining "actual physical control" | Definition as "directing influence, dominion, or regulation" is correct and preventive | Definition too broad; sleeping in driver’s seat should not be "actual physical control" | Court affirmed that sitting in driver’s seat with engine running on public road constitutes actual physical control and instruction was adequate |
| Failure to give choice-of-evils (lesser harm) instruction | Not warranted because DUI occurred before sleeping and Rask had alternatives; defendant bears burden to produce evidence | Rask acted to avoid greater harm (freezing) by sleeping in truck, so instruction required | No error: insufficient evidence to warrant instruction; crime occurred before sleeping in truck |
Key Cases Cited
- State v. Draper, 289 Neb. 777 (Neb. 2015) (statutory interpretation reviewed de novo)
- State v. Pangborn, 286 Neb. 363 (Neb. 2013) (PBT results are generally inadmissible to prove intoxication)
- State v. Christner, 251 Neb. 549 (Neb. 1996) (prior treatment of admissibility when advisement not given)
- State v. Meints, 189 Neb. 264 (Neb. 1972) (refusal as evidence of conduct, demeanor, and attitude toward the crime)
- State v. Davlin, 263 Neb. 283 (Neb. 2001) (duty of trial judge to instruct jury on pertinent law)