*1 injury proves injury’s is nonexistence without merit. judgment panel Compensation of the Workers’
Court is affirmed. appellant employer, City Because the Lincoln, did not reduce the amount of the worker’s award appeal, $750 Brazee awarded the sum of for the services attorney of his in this court.
Affirmed. III, v. James A. Donaldson Nebraska, appellee, appellant.
Dennis R. Lancaster Public and appellant. Scott P. Helvie for General, Spire, Attorney
Robert M. Hyde and E. Donald appellee.
Hastings, C.J., Shanahan, Caporale, Boslaugh, White, J J. Fahrnbruch, Grant, J.
Grant, III, an appeals from defendant, A. Donaldson James *2 affirming his County for Lancaster the district court order of being in the operating or of violation of a conviction upon public any vehicle motor physical control of “actual any drug liquor or of alcoholic the influence road while under gram or of. 10 of one a concentration person has or when such his milliliters of per one hundred by weight of alcohol urine____” court, defendant county jury found trial in After a county hearing, the court Following an enhancement guilty. third, was his and defendant defendant’s conviction found County jail, he was fined days in the Lancaster sentenced to 90 years. for 15 $500, suspended his driver’s license and to this timely district court and then appealed to the Defendant court. which, errors, assigns in six
In this court defendant affirming in the district court erred summary, assert court, county county and conviction defendant’s receiving specimen of in in evidence a (1) erred court performed test and the results of a chemical defendant’s urine thereon, prior of defendant’s receiving in evidence records (2) in determining third in this was defendant’s and convictions offense, determining (3) for the and conviction support guilty verdict for the was sufficient to evidence for driving while intoxicated. Wereverse and remand offense of a new trial. 8, 1987, at September that on
The record shows stopped by a p.m., 10:30 approximately County deputy near 26th and O Streets in sheriff’s Lancaster hearing stopped defendant’s vehicle after Lincoln. The officer seeing defendant’s vehicle come squealing tires and the sound of intersection controlled a red stop in the middle of an to a signal. testified that the defendant had some The officer traffic retrieving from wallet. difficulty his license eyes that defendant had red and a The officer testified The instructed of alcohol on his breath. officer moderate odor sobriety perform to field officer defendant some tests. The testified alphabet defendant failed recite the in full first to time, u, stopping with the letter and then recited the full alphabet repeated but the letter v twice in that recitation. officer difficulty following testified that defendant had no directions to count to 10 and back. The officer did not notice any slurring speech. Next, officer instructed tests, perform to coordination and balance and that, although testified appear defendant did not have problems test, performing finger-to-nose the defendant did not follow instructions. Defendant then a test where together side, he stood feet with hands tilting to the his head eyes slightly backward with closed and back arched. officer swayed testified the defendant approximately 3 off inches center, opinion which in the officer’s was more than normal a sober individual. The defendant also failed follow performing while instructions the “walk-the-line” test. The officer concluded that defendant was under the influence of alcohol, arrest, placed him transported under him to the County office, Lancaster he sheriff’s where submitted a urine *3 sample that was tested for alcohol content. collecting
In sample, the urine the officer followed the procedure the of testing, collection urine for as set out in 177 Code, Neb. Admin. ch. 005.02 (1986), requires which that the prior accused void his 20 bladder minutes to the the time test sample Accordingly, is taken. p.m., at 11:09 the officer directed urine, defendant to void his bladder of and that urine was p.m., discarded. 11:42 At defendant submitted a sample, urine and a later chemical of test that indicated that defendant’s urine grams had a concentration of .526 of alcohol per 100 of milliliters his urine. Navy
Defendant testified veteran, that he was a U.S. having years served 6 with two duty. 6-month Vietnam tours of He that, arrest, testified at the time of his he suffered from various physical problems, including and emotional a vascular disease Raynaud’s disease, posttraumatic disorder, called a stress a bipolar manic-depressive disorder, or and “Dismatic” disorder. He testified that he had been problems treated for these at various hospitals. Veterans’ Administration He also testified
686 was instructions on the officer’s ability to concentrate that his a eyes stemmed from red and that his by his condition affected syndrome. He further testified Reiter’s called medical condition resulting injuries from problems he numerous that had vision and defendant has accident. The he in an auto sustained at of the the time hearing was on medication impairments and him, defendant told arresting testified that officer arrest. The tests, a care under doctor’s before field that the taking medication. and was had day was arrested he on the he
Defendant admits that big “couple a ... drinking in afternoon and had been late leaving shortly before his whiskey” evening gulps later approximately 10 apartment. stopped He was the officer that he not under the influence later. He testified was minutes began he feel driving, but that while he was did admit police he had been at station the effects of the alcohol after short time. assignment alleges first error
Defendant’s summarized objections to overruling court erred in defendant’s that the trial test admitting of the results of chemical testimony expert regarding the urine and the discretion to admit or results. It is within the trial court’s evidence, ruling upheld and such will be absent an exclude Hayden, 211, 444 233 Neb. N.W.2d abuse of discretion. State v. “Judicial of discretion results when reasons (1989). abuse untenable, clearly unfairly are rulings judge of the trial right just depriving litigant denying substantial Schall, disposition.” results matters submitted for State v. 225, 229 p. 101, 106, 449 N.W.2d ante admitting that the trial court erred Defendant contends urine urine results because the tested not from urine test operating he was his that in defendant’s the time operated vehicle and was irrelevant to he a concentration of ten-hundredths of a vehicle when had gram weight per milliliters in *4 urine. violating charged (1) (4) with subsection or
Defendant (Supp. 1987). Section Neb. Rev. Stat. 39-669.07 39-669.07 provides part: be in any person or
It shall be unlawful any motor vehicle: control of the actual liquor or of of alcoholic While under the influence (1) any drug; has a concentration
(2) person When such by weight of alcohol gram or more ten-hundredths of one blood; of his or her per one hundred milliliters person has a concentration (3) When such by weight of alcohol gram or more ten-hundredths of one breath; liters of his or her per two hundred ten person has a concentration (4) When such by weight gram or more ten-hundredths of one of his or her urine. per one hundred milliliters “ clear from the various The State contends that is also [i]t decisions, statute, that court and the face of present at the time of the test alcohol/urine level is that amount procedures set out performed pursuant to methods and appellee 10. We first note Department of Health.” Brief for statute, that this as amended in has not been construed court, any construing we directed to court decision nor are say it is clear from the face an identical Nor can we that statute. Legislature forbidden a driver to of the has statute has a certain concentration of operate a motor vehicle when he hour he has urine at a time more than an after alcohol operating the vehicle. ceased of a chemical test maintains that the result
The State
following
without
urine
submitted
on a
Nebraska Administrative Code
procedure of title 177 of the
“
voiding
only
‘pooled’
reflect
concerning initial
would
whether the
provide no indication of
excretions” which
influence
of alcohol at the time he
individual was under the
fully
With that statement we
driving.
appellee
Brief for
at 9.
in this case. The
expert
State’s
witness
agree, as did the
amendment, the urine test is no
difficulty
that after the 1987
determine the blood-alcohol
longer
in a chemical test to
used
fluid,”
meaning
“body
apparently
blood.
in driver’s
content
current statute violation, is “under the influence” whether a driver now a *5 688
not, operate for a driver possession to or be in of a motor vehicle when there is a certain concentration of alcohol in his urine. The introducer of the 1987 amendment told the Legislature: converting of to the blood alcohol “[I]nstead content, establishing we’re separate . . . three standards for breath, Debate, urine and . . 404, . blood.” Floor L.B. Transportation Committee, Leg., 4, 90th 1st Sess. (Mar. 1987). Similarly, statement, the committee in considering the amendment, contained in part: “The bill present retains the blood, standard for tests of but necessity eliminates the converting tests of breath or urine into blood alcohol content.” Statement, Committee Leg., 90th (Feb. 1st Sess. 10, 1987). It is a principle fundamental statutory of construction that penal statutes are strictly construed, to be and it is not for the Supreme supply Court to missing words or sentences to make indefinite, clear that which is supply or to that which is not Steele, 476, 399 there. State v. 224 Neb. N.W.2d amendment, Before the 1987 provided, 39-669.07 part, in § that it was unlawful or be in actual control any motor vehicle while under the influence of alcoholic liquor “or when person has per ten-hundredths of one cent by or more weight of alcohol in body his or her as shown fluid by analysis blood, chemical breath, his or her or urine” (Emphasis supplied.) (Cum. 39-669.07 Supp. 1986). § In amended, 39-669.07 was part, by § changing the emphasized clause foregoing paragraph to read: “When person such has a concentration of gram ten-hundredths of one weight per one hundred milliliters of his or her urine.” 39-669.07(4)(Supp. 1987). §
Thus, longer there is no need for a determination of the blood-alcohol content analysis. chemical Legislature has amended the provide statute to “per for a se” violation consisting driving being in control of a motor vehicle at a time when person has a certain concentration of alcohol in his urine. Section 39-669.07(4) (Supp. 1987)has but logical one interpretation. The word “urine” as used in 39-669.07(4) § only refers to the urine that is in an body accused’s when the driver is operating, of, or is in control a motor vehicle. Consequently, Code, insofar as 177 Neb. Admin. ch. bladder, (1986) requires voiding 005.02 of a defendant’s title discarding very 177 calls for the urine that must be tested prove order to a violation of the offense under the amended Voiding prevents statute. the determination of the fact which is dispositive statutory of the violation. bar,
In the case at it is uncontroverted that the urine which body was in defendant’s at the time he was pursuant regulation, discarded and the tested was from urine obtained 33 minutes later. That urine was not in driving. testimony when he was There was no *6 connecting the concentration at the time of the test back driving. time of the testified, expert witness for the State on cross-
examination, follows: as you bladder, And if
Q. say you void a 20 minutes after bladder, you voided the sample hypothetically, then take a okay?
A. Yes. So, we
Q. produced know for a fact that that urine was void, at least after the is that correct?
A. Yes. So, if the
Q. void occurred 30 minutes after someone driving, was you’re we know that the testing urine that body after the void was not in the driving, the time of don’t we?
A. Yes. Determining probative whether this evidence is of value is a legal question. expert witness who the test on sample clearly stated the sample taken was not from urine that was in the operating when he was any testimony his vehicle. In the absence of that the level of testing defendant’s urine at the time of the could be related back to determine the concentration of alcohol in defendant’s urine driving, any when he relevance of the tested would substantially outweighed by be danger prejudice of unfair jury might or confusion of issues because the find that guilty 39-669.07(4) defendant was of a violation of because of § (Neb. the later urine-alcohol test. See Neb. Evid. R. 403 Rev. (Reissue 1989)). Stat. 27-403 It was error for the court to admit the expert testimony chemical test results and thereon. admitting excluding
Error evidence in a criminal trial is prejudicial proves unless the State that the error was harmless beyond Cox, a reasonable doubt. State v. 231 Neb. N.W.2d 134 (1989). The error in this case was not harmless evidence, admitted, because the as indicated that defendant had gram concentration of .526 of 1 by weight or more of alcohol per 100 milliliters of his urine at a time not relevant to a violation under submitted, subsection The evidence was however, jury and the could guilty well have found defendant as charged jury if the determined that operating defendant was automobile at a time when he had more than ten-hundredths of gram by weight per of alcohol 100milliliters of his urine. The jury might also have determined that guilty driving while under the influence of alcohol based on the driving nonscientific “while under the influence” evidence jury. before the It impossible to determine the basis of the jury’s verdict.
The State offered no other evidence that would establish the concentration of present in the defendant’s urine at the time he Thus, the vehicle. there was no evidence presented at trial support possible jury finding that the defendant had a concentration of gram ten-hundredths of 1 by weight per 100milliliters of his urine. Since jury general returned a guilty, may verdict of we rely not *7 that, jury-waived the rule trial, in a presumed it will be that the court does not improper consider evidence. The defendant is jury entitled to have a guilt consider his or driving innocence of while under the influence of liquor alcoholic without the prejudicial, irrelevant evidence of the urine test.
In holding, so we find that defendant’s third summarized assignment of error is without above, merit. As set out there which, was evidence if believed jury, the support would finding that guilty driving while under the influence of liquor. alcoholic
Since the cause is remanded court, for a new trial in county it necessary dispose of defendant’s second summarized assignment error, county that the court in determining erred the defendant’s conviction on the charge instant constituted his third driving conviction for offense of while intoxicated while a certain concentration of alcohol inwas body fluid. connection, 1984, In July 12, the record shows that on pled guilty defendant complaint an amended charging that 23, 1984, on March he operating or in actual control aof motor vehicle he when had ten-hundredths of percent by weight or more of alcohol in his The fluid. original charge being had included the phrase “Such a second charge offense.” The was amended from second offense to first July 12, 1984, On offense. defendant “guilty was found as 5, charged.” 1984, On October defendant was sentenced to days fined, jail, and ordered not to a motor vehicle for 6 months. day 1984,
On same July 12, as the plea, above-discussed guilty defendant entered plea to an complaint amended 2, charging that on guilty June he was of the same charge originally offense. This allegation included the June 2 charge January offense was a second-offense because on 31,1981, been charge. defendant had convicted of the same On July 12, the prosection asked leave to amend the by striking second granted offense. After leave was to so amend complaint, pled guilty charged.” “as Defendant 5,1984, sentenced October to the penalty same as in preceding case set out in the paragraph. entry The docket in this case included: “Jail and suspensions sentences to run concurrently.” county judge The same entered orders in each case. shows, therefore,
The record day, that on the same defendant, counsel, pled with guilty to two driving first-offense charges while intoxicated and received concurrent sentences. question presented is whether subsequent or, conviction would be second offense as determined court, a third offense.
Defendant increasing penalties contends that for being possession successive offenses for of motor proscribed by vehicles under the conditions “closely the statute parallel statute, the Nebraska habitual criminal §29-2221 appellant Brief 30. contends [Reissue 1989].” *8 692 532, 260 Orosco, Neb. by v. 199 is State the issue controlled
that Smith, v. grounds, (1977), on other 303 overruled N.W.2d Orosco, in connection (1983). In Neb. 329 N.W.2d us, convicted of point the defendant the before with made in defense this driving and raised the drunk third-offense The court stated: case. charged as first prior were each
The two convictions that, before third contends The defendant offenses. made, first the must have be offense can convicted, as a second charged, punished and been R. S. 1943. He (2), 39-669.07 R. under section offender do not so authority proposition. this We read no for cites punished to be as third statute. We hold the offender, charged be necessary only that the defendant it is previously convicted of been twice and found to have liquor. intoxicating driving while the influence of under Orosco, 260N.W.2dat 310. supra State v. at hold, in properly this Similarly, we the trial court could hold convicted, case, be defendant’s that if defendant were it could a third-offense violation of third conviction. To constitute 39-669.07, necessary only properly be it is that a violator § 39-669.07, two violations of whether previous convicted of be called first offense or second offense. the earlier convictions for judgment reversed and cause remanded further opinion. proceedings with consistent and a new trial. Reversed remanded J., concurring. White, out, majority points Legislature has created an As which is the amount of alcohol in the urine offense defined stopped suspicion driver the time the is arrested vehicle while intoxicated. The offense a motor assumes a blood, relationship affects between alcohol which ability safely, vehicle a motor and alcohol urine, intellectual motor skills of which affects the and an operator not at all. majority points process voiding out and then subsequent
testing period elimination after a of time is not Legislature. consistent with the crime created subsequent newly voiding testing This initial created *9 as, best, and eliminated urine has been described an of unreliable indicator alcohol content blood. The legislative testing test of no immediate elimination and is of who, bout, probative drinking value at all. The driver after a passage time allows the sufficient to have allowed the blood will, prior to have freed itself from alcohol to elimination urine, have concentration of alcohol in his urine sufficient and, legally yet, declare him be completely drunk sober. availability tests, With blood and breath test urine ought unreliable, simply to be abandoned as unworkable, situations, many totally unjust. and in J., joins in this concurrence.
Shanahan, Nebraska, appellee, Whiteley, v. Mitchell appellant.