*1 hiring discharge both entities. as to is effective subject the members would be To hold otherwise complete will of the to the of the subdivisions of one body, an intention not dis- other members of the or from the words of the resolution from the cernible Cooperation Act. Interlocal lawfully May appellant terminated 1980. and is af- The decision of the trial court correct firmed. Affirmed. C.J., in the result. concurs
Krivosha, appellee, Nebraska, v. Allen Dean State appellant. Miller, January No. Filed 1983. 81-698. Kenney, Douglas County Public De-
Thomas M. Stanley Krieger, appellant. fender, A. General, R. Attorney Terry L. Douglas, Paul Schaaf, for appellee. C.J., Boslaugh, Clinton,
Krivosha, McCown, JJ. Caporale, White, Hastings, *2 Per Curiam. was convicted of motor vehicle iy2 imprisonment and sentenced to
homicide has and as error the ad- appealed assigns He years. evidence of the results of a blood test mission into accident, the admission of rebut- following made State, by offered and the instruc- tal to the jury. tions shows that at about 10:30 on p.m. April
The record the defendant was a operating motorcycle direction on Street Maple in a westbound Omaha. Streets, intersection of 63rd and Maple At with a motorcycle pedestrian, Marguerite collided Bostrom suffered severe Bostrom. Mrs. head and and was dead at injuries pronounced internal Im- Hospital. manuel injured was also the accident and
Miller was Hospital to the Methodist room emergency taken officer, he was questioned by police where who de- alcohol on Miller’s breath. Miller was tected then operating a motor vehicle while arrested under liquor. influence of The intoxicating officer read Nebraska consent implied advisory Miller form him of his rights. advised Miranda The and officer Miller that he could choose advised either also or a urine test to determine the level of blood alcohol Miller chose a blood test. system. in his technician was directed to draw hospital A a blood was taken sample by sample, headquarters refrigerated. The police time taking sample between and re- elapsed y2 was about hours. The chemist who frigeration 4, 1981, May testified that on sample tested 0.14 was percent alcohol level of measured. A 18, the level May on showed be 0.15 retest percent. that there was not a indicated The chemist the test results. between true deviation test was received to the blood evidence as objection The defendant contends at the trial. over (1) the admissible because de- was not the evidence that he could choose to have not advised was fendant physician performed separate of his test (2) performed choosing as did not meet the test regulations, Department in that no Health antico- present sample preservative agulant or potassium failed to use car- the chemist testing. in the bonate (Reissue 1978) provides § 39-669.09 Rev. Stat. part: law enforcement officer who “The pursuant blood, breath, or urine test chemical a section 39-669.08 direct whether the test shall be urine; blood, breath, Provided, that when the of officer person’s test shall be directs that of a person may urine, such choose whether the blood or test shall person *3 or urine. The be of his blood tested physician permitted a be to have of his shall choice per- perform his condition have evaluate laboratory appro- he whatever tests deems formed priate following to and in addition the test ad- at the direction of the law enforcement ministered officer.” Weedlun, 190
In Zadina v. N.W.2d 857 require we held this statute does not to inform the person to be tested of his request independent privilege See, also, test. Wahrman, 199 Neb. N.W.2d 818 State (1977); Sommers, 201 Neb. State v. (1978); Brittain, 212 regulations the rules and
Rule of state Department, relating analyses Health the de- body fluids and termination of the alcohol content driving-while-intoxicated law, breath under samples provides that blood must collected in a having anticoagulant-preservative in it. container It that the defendant’s blood was col- undisputed in tube did not such a sub- lected which contain stance, through was admitted Expert pre- to the effect that presence chemist in yeast growth, inhibits turn might servative particular the alcohol content. On this sam- affect however, performed test was and it revealed ple, presence yeast. no witness further expert drawn locally samples, testified and tested sample was more refrigeration important preservative guaranteeing than reliable test re- sults. A testified pathologist that whether the pre- no present servative was or not made difference the test results. Fox, State N.W.2d 576
(1964), we held effect an improper on anticoagulant amount the test results goes only and credibility the evidence. Rule 3 regulates also types methods ap- blood An proved measuring alcohol. approved method is termed injection direct into a gas chromat- This ograph. method the injection of an standard, internal but of potassium addition car- required. bonate is not argues the tester’s failure to use potassium carbonate while using gas chromatograph violated rule 3.
The chemist called the State testified that he the method which an used internal standard was injected gas into chromatograph. The evidence noncompliance not show with the prescribed does method.
We find no error in the admission into evidence of test. the results of
On rebuttal State was allowed introduce tes- accident timony of an reconstruction expert indicat- *4 speed the defendant’s ing at the time of the ac- m.p.h. was 70 argues cident defendant this evi- was irrelevant and was dence there insufficient the foundation testimony.
The manner the which defendant operated his [278] State v. charge. to was relevant
vehicle (1982), 810, we held Hilker, 317 N.W.2d 210 Neb. (Cum. Stat. 39-669.07 violation § Rev. 1982) ways, any of three proven can Supp. motor vehicle “while under among operating them This was liquor.” phrase of alcoholic influence 631, 638, Henke, 167 Neb. defined O’Neill “ ‘ (1959), 322, person as: is under “[A] N.W.2d if such is un liquor person influence of alcoholic to such an intoxicating liquor influence of such der degree appreciable to have lost to as extent faculties, body of his or mental and control normal impairment there is ca the extent ’ ” correctly efficiently.” act and to think and pacity testimony had introduced as “ Tn a motorcycle. prosecu criminal speed tion, competent, otherwise any testimony, offered on behalf testimony dispute tends to a fact is proper as material rebuttal the accused ” 417, State, testimony.’ Lipscomb (1956). See, also, 401-02 76 N.W.2d Pratt, in accident recon- experienced
The witness was a hypothetical testified in response He struction. (1) on the factors: following based question (2) victim, and test drive over cycle area, (3) police autopsy reports, review of the taken, (5) (4) weather road condi- photographs tions, (6) of the victim. This resting place infor- supported the wit- mation and other witnesses. ness Co., Inc., v. Matthews
In Hawkins Constr. Co. 558-59, we argument “In an overlapping defend stated: hypothetical question the form assail ants because it omitted the testimony particularly Pechar, A collapse. hypothetical who observed reflect fairly proven should facts. question the trial judge ruling latitude allowed on Great A question. admissibility hypothetical such
279 improper simply question is not because it includes only part to. Landis & Schick of the facts testified expert Watts, 671, Neb. 121 980. An v. 84 N.W. wit opinion right giving has a ness in an confine the that he recites to those which are believed to facts true, or which are believed to be material question issue. The of what facts are relevant to the upon determination is one of the basic ones experts any given field differ.” particular expert issue of of ve speed Lee, was dealt with in hicular Neb. Herman v. 210 (1982), 563, 570-71, 56, 316 N.W.2d 61 as follows: adoption opin Evidence, ‘‘Since the of the Rules of speed as to vehicular rates of ions in two other cases before us. 207 Neb. fessional have been elicited Phinney, In v. Nickal (1980), pro a licensed engineer degree with a in mechanical en experience gineering and in accident reconstruction permitted testify speed plaintiff’s as to the motorcycle. personal knowledge underlying His degree measurements, marks, data included skid pickup, weight vehicles, rotation defendant’s conditions, surface road tween the coefficient of friction be pavement, change grade, tires and the Suhr, and other facts. Belitz 303 284 we it N.W.2d investigating held was error to allow an that arrived on the scene an testify lay hour after accident as witness that speed plaintiff’s exceeded what was safe for road gleaned The rule to be conditions. from these two opinion speed proper, is that an cases vehicular is provided a sufficient foundation is laid to show the expertise edge specific witness, as well as knowl underlying question facts to deal with the in issue. possible fixing exact standard
‘‘No the and the expert qualifications witness, of an or skilled ruling opinion judge receiving excluding of a trial appeal only
will be reversed on when a clear abuse of discretion is shown. Northern Nat. Gas Co.
[280] Corp., N.W.2d v. Beech Aircraft Mfg. (1979); Co., Inc., Richards Danielsen (1980); Loveless, (1981).” in the admission no of discretion There was abuse testimony. expert A foundation was sufficient of laid The knowledge. showing qualifications and both his posed hypothetical question set met criteria supra. Co., Constr. out Hawkins *6 requested instruction submitted interpretation upon Gerber, State of based (1980), the same was Neb. requested Brittain, 212 in State v. as that 325 N.W.2d 693-94, we at N.W.2d In the Brittain case said “Finally, objects the defendant to the court 146: at refusing having given its No. own instruction and requested give No. 1. the defendant’s instruction to These requirements to the of instructions relate supra proposed [T]he in Gerber, .... defendant’s jury if the found from stated that the evi struction prove any ‘the has that State failed one of dence you totally disregard any facts must testi these four regarding mony the evidence received blood test or the test.’ the results of blood itself and refusing instruction, offered “In the defendant’s upon Fox, 238, 249, court relied the we which all said: ‘It is statutory the from the record foun obvious requirements the admission of the result dational analysis met, have been the blood and such evi competent properly admitted. There dence nothing expressly which, the either statutes is inferentially, prohibits anticoagulant of an use purpose preserving during the blood for the Any until the test. from withdrawal evi interim alcoholic content of effect the the dence might by have been affected defendant’s improper anticoagulant presence of an amount of antiseptic by tube, or use of an the test cleanse injection syringe with the the arm before needle, upon admissibility no effect would have go only rather, test, but, evidence would such credibility test.’ to the Fox, insists is no “The defendant supra, having Nebraska, longer the law in been overruled language by as set forth Gerber, supra, opinion. in this earlier interpret in this fashion. do not Both
“We Gerber reception proof evidence, deal with not cases impose Both cases certain foundational of facts. re- quirements before the test be admitted. These requirements were satisfied the case at bar. jury required that Neither case reexamine admissibility ruling on the court’s trial The defendant tests. proposed was not entitled to the in- refusing give no error in and there was struction it.” compliance
The Gerber case with Department state Health. rule methods distinguished “method” defined from “(b) “technique” as follows: Methods and tech- Department niques approved of Health are as: defined *7 principle means the
“i. METHOD name analysis. The method be a LABORATORY regulations which these rules and METHOD, analysis using a method of chemical not means designed testing specifically alcohol device. TECHNIQUE means a set of written
“ii. instruc- procedure, equipment, the which describe tions preventive necessary equipment maintenance to ob- test alcohol content result.” an accurate tain requirements container which the “technique” is a rather is drawn than a comply technique with a Failure to “method.” is prove element, foundational to but a failure af not only. See, credibility also, State v. fects (1980); 451, 293 N.W.2d Scott, (1980). Kolar, error, of the District judgment There no being Court affirmed.
Affirmed. C.J., Krivosha, dissenting. file a in this
I take
to
dissent
case
opportunity
I
reason that
was not a member
limited
we decided the case
State v. Wahr
court when
(1977).
man,
258 N.W.2d
Had I
time,
at
that
I
a member
court
would
been
in the
White and Mc-
joined
Judges
have
dissent
I
my
write now to
view
specifically
express
Cown.
the rule of law first
I
with
declared
disagree
by
Weedlun, 187 Neb.
v.
in Zadina
us
in State
Wahrman,
repeated
again
when an
requests
to the effect
supra,
either
a blood
urine
give
sample,
individual
to
Rev.
provisions
to
Stat.
pursuant
(Reissue 1978), the individual need not
39-669.09
§
advised
the statute
entitles
the individual
to
of his choice
physician
present
have
evaluate
or have
perform
performed
his condition
what
he deems
laboratory
further
tests
appropriate
ever
requested
to that
officer.
It is
in addition
no
in American
generally
acceptable
juris
longer
that all
merely
persons
are
suggest
pre
prudence
and,
therefore,
the law
to know
nothing
sumed
more
The underlying
required.
philosophy
is ever
Court
Supreme
the U.S.
to establish
motivated
makes
that clear.
See
warnings
Miranda
Miranda
Arizona,
S. Ct.
16 L.
384 U.S.
Ed.
2d
not
appear
It does
me to impose
officer,
upon a
who
police
must
unreasonable
burden
test,
instance
to further
request
in the first
ad
that he has a
right
an individual
select
vise
whatever
perform
of his choice to
labora
physician
deems
appropriate,
the physician
par
tests
tory
that,
view of
fact
absent
ticularly
ac
are
tests
conducted
com
physician,
cused’s
view
accused and the
out of the
results
pletely
*8
violation,
nothing
with
more.
establish
Unless
rights,
has been
the individual
advised of his
I have
difficulty
seeing
knowingly
how he can
waive
have,
cases,
them. We
in a host of
now made it
clear that before an individual
waive a consti
right,
tutional
right
he must understand that he had that
place
knowingly
in the first
and that he
waived
right.
Bustamonte,
See Schneckloth v.
412 U.S.
93 S. Ct.
White,
Langel Chevrolet-Cadillac, Inc., appellant, Bridge & Construction Company, Midwest appellee. January
Filed 1983. No. 81-724. Engler Murray Ogborn Tim of Nelson & Harding, appellant.
David A. Domina Firm, Domina of the Law appellee.