State v. Rothenberger
294 Neb. 810
| Neb. | 2016Background
- Shortly after midnight, a motorist reported a vehicle swerving on Highway 92; Deputy Shepard observed weaving, slow speeds, and initiated a stop; the driver (Rothenberger) eventually stopped and exhibited slow/slurred speech and confusion.
- Rothenberger had difficulty exiting and balancing, performed poorly or could not complete standardized field sobriety tests, and a preliminary breath test was negative for alcohol; he admitted taking Suboxone earlier that day.
- Shepard and backup Chitwood concluded Rothenberger was impaired (not by alcohol) and arrested him for DUI (alcohol or drugs); Sgt. Mark Bliss (a certified DRE) later performed a DRE exam at the station and requested a urine chemical test, which Rothenberger refused.
- Rothenberger was charged with DUI (second offense) and refusal to submit to a chemical test; the county court granted a directed verdict acquitting him of DUI (insufficient evidence tying impairment to drugs) but denied directed verdict on refusal; he was convicted by a jury of refusal.
- Rothenberger appealed, arguing (1) arrest lacked probable cause because officers were not DRE-certified and did not complete DRE protocol, (2) the refusal conviction should have been dismissed (directed verdict) because the State didn’t prove he refused a statutory "chemical test," and (3) the court erred by refusing his proposed jury instructions defining "chemical test" and "drug." Lower courts and the Court of Appeals affirmed; the Nebraska Supreme Court granted further review.
Issues
| Issue | Rothenberger's Argument | State's Argument | Held |
|---|---|---|---|
| Probable cause for warrantless arrest for DUI-drugs | Shepard and Chitwood were not DRE-certified and did not complete DRE protocol, so they could not rule out medical causes; thus no probable cause to arrest for drug impairment | Probable cause is based on the totality of circumstances; officers’ observations (driving, signs of impairment, negative PBT, admission of Suboxone, DRE follow-up) supplied reasonably trustworthy basis to arrest | Probable cause existed; no bright-line rule requires DRE certification or full DRE protocol to form probable cause |
| Directed verdict on refusal charge | Insufficient evidence that impairment was drug-related; also argued the refused test was not a "chemical test" as defined by administrative regs (which list seven drugs) | Elements of refusal do not require proof that the suspected drug is one detectable by the administrative-code "chemical test"; State proved arrest for suspected DUI, advisement, and refusal | Denial of directed verdict affirmed; sufficient evidence supported refusal conviction and type of drug or detectability is not an element |
| Requested jury instructions defining "chemical test" and "drug" | Court should instruct jury with administrative-code definitions (specific seven drugs and approved methods) | Those definitions are irrelevant to the statutory elements of refusal and would misstate the law | Court properly refused instructions; proposed instructions were not a correct statement of law and not warranted by the evidence |
Key Cases Cited
- State v. Daly, 278 Neb. 903 (Neb. 2009) (describing DRE protocol and use of DRE testimony for proving drug type at trial)
- State v. Van Ackeren, 242 Neb. 479 (Neb. 1994) (probable cause for warrantless arrest evaluated on reasonably trustworthy information)
- State v. Matit, 288 Neb. 163 (Neb. 2014) (probable cause is determined by totality of circumstances and is a commonsense standard)
- State v. Perry, 292 Neb. 708 (Neb. 2016) (probable cause requires less than evidence needed for conviction)
- State v. Elseman, 287 Neb. 134 (Neb. 2014) (standard for directing a verdict in criminal cases)