STATE OF NEBRASKA, APPELLEE, v. KELLY R. CHRISTNER, APPELLANT
No. S-96-200
Supreme Court of Nebraska
January 17, 1997
557 N.W.2d 707
CONCLUSION
Because Emrich‘s blood test result should not have been received in evidence, we reverse Emrich‘s conviction for operating or being in the actual physical control of a motor vehicle while he had a concentration of .10 of 1 gram or more of alcohol per 100 milliliters of his blood.
Because there is sufficient evidence in the record from which a fact finder could find Emrich guilty beyond a reasonable doubt of operating or being in the actual physical control of a motor vehicle upon the public streets and highways while he was under the influence of alcohol, we reverse the decision of the district court for Red Willow County and remand the cause to the district court with direction to remand the matter to the county court for a new trial.
REVERSED AND REMANDED WITH DIRECTION.
CONNOLLY, J., dissenting.
I dissent for the reasons stated in my dissent in State v. Christner, post p. 549, 557 N.W.2d 707 (1997), and would therefore affirm.
WRIGHT and GERRARD, JJ., join in this dissent.
G. Peter Burger, of Burger & Bennett, P.C., for appellant.
Don Stenberg, Attorney General, and David T. Bydalek for appellee.
PER CURIAM.
Kelly R. Christner claims that due to the test result from an improperly obtained sample of his blood, a Red Willow county judge convicted him of operating or being in the actual physical control of a motor vehicle while he had an excessive concentration of alcohol in his body.
Upon Christner‘s appeal to the district court for Red Willow County, that court affirmed Christner‘s county court conviction.
We reverse Christner‘s conviction and direct that the charge against him be dismissed.
FACTS
The sole charge against Christner, for which he was convicted in the Red Willow County Court, was that Christner, while operating a motor vehicle upon the public streets and highways within Red Willow County, violated that portion of
Christner entered a not guilty plea to the charge and waived a jury trial. At a bench trial, certain facts contained in the arresting officer‘s report and certain other facts were received in evidence by stipulation of the parties. It was also stipulated that if certain witnesses were called to testify, they would lay the necessary foundation for the introduction into evidence of exhibit 5, which is a report of the McCook Community Hospital clinical laboratory. The report reflects that shortly after Christner was arrested, a sample of his blood was taken, and that a chemical test of it revealed that Christner had a concentration of .10 of 1 gram or more by weight of alcohol per 100 milliliters of his blood, to-wit: .188. Christner objected to the court‘s receiving in evidence the test result, because he was not adequately advised of the consequences of his taking or refusing to submit to a blood test. The trial court overruled Christner‘s objection and admitted into evidence the result of his blood test.
The status of this appeal is such that if Christner‘s blood test result should not have been received in evidence, then there was insufficient evidence to convict him of the violation with which he was charged. On the other hand, if the trial court properly received into evidence Christner‘s blood test result, Christner‘s conviction should be affirmed.
Restated, Christner contends that the trial court erred in (1) receiving into evidence the result of his blood test and (2) finding that the evidence supported a finding that he had .10 of 1 gram or more by weight of alcohol per 100 milliliters of his blood, in violation of
STANDARD OF REVIEW
Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below. State v. Lujano, ante p. 256, 557 N.W.2d 217 (1996); State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996); Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995).
In a bench trial of a law action, including a criminal case tried without a jury, erroneous admission of evidence is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court‘s factual findings necessary for the judgment or decision reviewed; therefore, an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through use of erroneously admitted evidence in a case tried without a jury. State v. Lujano, supra; State v. Lomack, 239 Neb. 368, 476 N.W.2d 237 (1991). See, also, State v. Chambers, 241 Neb. 66, 486 N.W.2d 481 (1992).
In determining whether evidence is sufficient to sustain a conviction in a bench trial, an appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder‘s province for disposition. A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. The trial court‘s findings have the effect of a jury verdict and will not be set aside unless clearly erroneous. State v. Johnson, supra; State v. Hand, 244 Neb. 437, 507 N.W.2d 285 (1993).
On appeal, if it appears the evidence is sufficient to support a conviction, the cause may be remanded to the district court for further proceedings; if the evidence is not sufficient, the cause
ANALYSIS
Under his first assignment of error, Christner contends that the administrative license revocation postarrest advisement (advisory form) read to him prior to his agreeing to take a blood test did not adequately advise him of the consequences of submitting to a blood test, as required by
In Smith, we addressed the issue of whether an arresting officer, by reading an advisory form, gave a driver-arrestee adequate notice, as required by
Any person who is required to submit . . . to a chemical blood, breath, or urine test or tests . . . shall be advised of (a) the consequences of refusing to submit to such test or tests and (b) the consequences if he or she submits to such test and the test discloses the presence of a concentration of alcohol in violation of subsection (1) of section 60-6,196.
(Emphasis supplied.)
(As an aside, we note that the Nebraska Legislature amended the foregoing provision, with an operative date of February 27, 1996, to read: “Any person who is required to submit to a chemical blood, breath, or urine test or tests pursuant to this section
We held in Smith v. State, 248 Neb. at 365, 535 N.W.2d at 697-98, that “[t]he sensible reading of
We have reaffirmed our Smith decision in Perrine v. State, 249 Neb. 518, 544 N.W.2d 364 (1996), and in Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996).
As previously stated, the key question in Christner‘s appeal is whether the result of his chemical blood test should have been received in evidence when he had not been fully advised of the consequences of taking the test, including the fact that the test result could be used against him in a criminal prosecution.
This court has not ruled upon the issue involved in the case at bar as it pertains to a criminal case. However, the Court of Appeals has held that when a driver-arrestee has not been fully informed of the consequences of taking a chemical test to determine the concentration of alcohol in his or her body, his or her refusal to take the test is not admissible in evidence to support
A driver-arrestee who is required to submit to a chemical blood, breath, or urine test under
In this case, the trial court could not have determined that Christner was operating a motor vehicle with .10 of 1 gram or more of alcohol per 100 milliliters of his blood without relying upon the results of Christner‘s blood test. The record clearly establishes the fact that the county court, acting as the trier of fact, relied upon the results of Christner‘s blood test to reach its factual finding that Christner operated his motor vehicle with .10 of 1 gram or more of alcohol per 100 milliliters of his blood in his body. It is also clear that the court based its legal conclusion that Christner operated his motor vehicle while he had .10 of 1 gram or more of alcohol per 100 milliliters of his blood based on Christner‘s blood test.
In State v. Chambers, 241 Neb. 66, 70, 486 N.W.2d 481, 484 (1992), we held that “the erroneous admission of evidence in a
In this case, there is no other evidence to support a finding that Christner had .10 of 1 gram or more of alcohol per 100 milliliters of his blood, an essential element of the crime with which he was charged and upon which he was tried and convicted. The trial court relied explicitly and exclusively upon the result of a blood test to find Christner guilty of the charge against him.
Although we are compelled to reverse Christner‘s conviction, we must examine the sufficiency of the evidence presented against him in order to resolve this matter completely. See State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987). See, also, State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
In Lee, we stated that “[i]f it appears the evidence is sufficient to support the convictions, the cause may be remanded to the district court for further proceedings; if the evidence is not sufficient . . . the cause must be dismissed.” 227 Neb. at 283, 417 N.W.2d at 30.
After a careful examination of the record, we find that no properly admissible evidence was obtained upon which Christner could be convicted of either operating or having actual physical control of a motor vehicle upon the public streets and highways while he was under the influence of alcohol or while he had an illegal concentration of alcohol in his body.
Therefore, we must reverse Christner‘s conviction and direct that the charge against him be dismissed.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.
I agree with the majority that it is error for a trial court, over a defendant‘s objection, to admit into evidence the results of a chemical blood, breath, or urine test to prove the concentration of alcohol in the defendant‘s body if the defendant was read an inadequate advisory form before taking the test. The dissenters contend that the legislative intent behind
In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. See, Village of Winside v. Jackson, 250 Neb. 851, 553 N.W.2d 476 (1996); County Cork v. Nebraska Liquor Control Comm., 250 Neb. 456, 550 N.W.2d 913 (1996); State v. Cox, 247 Neb. 729, 529 N.W.2d 795 (1995).
Section 60-6,197(10), as it stood at the time relevant to this case, provided, in relevant part:
Any person who is required to submit . . . to a chemical blood, breath, or urine test or tests . . . shall be advised of (a) the consequences of refusing to submit to such test or tests and (b) the consequences if he or she submits to such test and the test discloses the presence of a concentration of alcohol in violation of subsection (1) of section 60-6,196.
(Emphasis supplied.) The dissenters contend that the above statutory language, when read in light of its legislative history, should be construed to mean something less than what it says. Specifically, the dissenters contend that “the only relevant consequences contemplated by
When the Legislature enacted
Under the law of this state, statutes covering substantive matters in effect at the time of the transaction govern, not later enacted statutes. See State v. Groff, 247 Neb. 586, 529 N.W.2d 50 (1995).
The dissenters seemingly have forgotten that beginning with the founding of this nation one of the basic reasons for courts to exist is to protect the individual from arbitrary acts of government. The right to be fully advised of the consequences of taking or refusing to take a chemical test for alcohol was granted by the Legislature in
Accordingly, I concur in the majority‘s decision because at the time of Christner‘s arrest Smith was the controlling law and
WHITE, C.J., joins in this concurrence.
CONNOLLY, J., dissenting.
In my opinion, the advisory form which the law enforcement officer read to Christner, prior to his blood test, was adequate under
It is undisputed that the advisory form read to Christner is the same as the advisory form that was at issue in Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995). Thus, the only discernible difference between Smith and the instant case is that Smith arose in the context of an administrative license revoca-
As in Smith, the majority of this court once again ignores the legislative intent behind
While this amended version of
The logical conclusion of the Supreme Court‘s ruling could be an unending and an unlimited advisement form. . . . That could affect all drunk driving cases in this state. That‘s not the logical conclusion. That‘s not what the Legislature intended, and it certainly isn‘t what good public policy should be.
Id. at 18-19.
Clearly, the only relevant consequences contemplated by
WRIGHT and GERRARD, JJ., join in this dissent.