STATE OF NEBRASKA, APPELLEE, V. CHARMAYNE R. STRONG, APPELLANT.
No. S-24-296
Nebraska Supreme Court
February 28, 2025
318 Neb. 525
N.W.3d ___
- Statutes: Appeal and Error. Statutory interpretation presents a question of law that an appellate court resolves independently of the trial court.
- Statutes. It is not within the province of the courts to read meaning into a statute that is not there or to read anything direct and plain out of a statute.
- Blood, Breath, and Urine Tests: Search Warrants.
Neb. Rev. Stat. § 60-6,197(3) (Reissue 2021) criminalizes the refusal to submit to a chemical blood test when the blood test is sought pursuant to a search warrant.
Appeal from the District Court for Sheridan County, TRAVIS P. O‘GORMAN, Judge, on appeal thereto from the County Court for Sheridan County, PAUL G. WESS, Judge. Judgment of District Court affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss for appellee.
FUNKE, C.J., MILLER-LERMAN, CASSEL, STACY, PAPIK, and FREUDENBERG, JJ.
PAPIK, J.
At
BACKGROUND
Relatively few background facts are necessary to frame the legal dispute at issue. Law enforcement officers responding to a minor two-vehicle accident suspected that the occupant of one of the vehicles, Charmayne R. Strong, was intoxicated. After Strong refused to take a preliminary breath test, officers arrested her and transported her to law enforcement headquarters. Officers then obtained a search warrant for a chemical test of her blood. They also advised her that refusal to submit to the blood test was a separate crime for which she could be charged. Strong initially said she would consent to the blood test, but after she was transported to a hospital, she raised objections and insisted on speaking to various individuals before she would agree to the blood test. After some time, the officers determined that Strong had refused to submit to the blood test and transported her back to law enforcement headquarters.
The State later charged Strong in county court with refusal to submit to a chemical test, in violation of
Strong appealed to the district court. Her primary argument in the district court was that one cannot be found guilty of refusal to submit to a chemical test for blood under
Strong then filed this appeal along with a petition to bypass the Nebraska Court of Appeals. We granted the petition to bypass.
ASSIGNMENTS OF ERROR
Strong assigns that the district court erred by affirming the county court‘s denial of her motion to suppress and by finding there was sufficient evidence to convict her.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law that an appellate court resolves independently of the trial court. State v. Clausen, ante p. 375, 15 N.W.3d 858 (2025).
Framing the Question at Issue.
The issue Strong presents in this case is narrow. Strong does not contest the county court‘s findings that officers sought a chemical test of her blood, that she was advised that a failure to submit to the chemical test was a separate offense for which she could be charged, or that she refused to submit to the chemical test. See State v. Rothenberger, 294 Neb. 810, 885 N.W.2d 23 (2016) (setting forth elements of offense of refusal to submit to chemical test under
Strong has clothed her sole legal contention in the garb of assignments of error that assert her motion to suppress should have been granted and the evidence was insufficient to support her conviction. At oral argument, she acknowledged that the success of both assignments of error depends upon her contention that one cannot be found guilty of refusal to submit to a chemical test for blood under
Although it is not clear that Strong relies directly on the U.S. Supreme Court‘s opinion in Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), some background regarding that case is helpful to understanding her argument. In Birchfield, the U.S. Supreme Court held that a breath test may be administered as a search incident to a lawful arrest for drunk driving but that the search incident to arrest doctrine did not justify the warrantless taking of a blood sample. The U.S. Supreme Court also addressed whether a warrantless blood test could be justified by implied consent laws. On that question, the Court held that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id., 579 U.S. at 477.
The parties appear to agree that after Birchfield, in the absence of exigent circumstances, a person cannot be criminally convicted of refusing to submit to a warrantless chemical blood test. The parties disagree, however, about whether one can be convicted of refusal to submit to a chemical blood test if the test is sought after law enforcement has obtained a search warrant. As we have noted, Strong argues that one cannot be convicted in those circumstances. In support of this position, she argues that
Scope of § 60-6,197 .
Strong characterizes
Resolution of this argument obviously requires that we consider and interpret the text of
But
Subsection (2) likewise is not limited to tests sought pursuant to implied consent. Rather, it provides that law enforcement may require “any person arrested for any offense arising out of acts alleged to have been committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs” to submit to a chemical blood test if the officer “has reasonable grounds to believe that such person was driving or was in the actual physical control of a motor vehicle in this state while under the influence of alcoholic liquor or drugs in violation of section 60-6,196.”
[2] In sum, subsection (3) makes it a crime to refuse a test “required pursuant to this section,” but “this section,” specifically subsection (2), broadly authorizes law enforcement to seek tests whenever they arrest a person with reasonable grounds to believe the person was driving under the influence. See
[3] We therefore hold that
No Constitutional Barrier to Strong‘s Conviction.
Although we read
In this case, however, there is no constitutional barrier to Strong‘s conviction. Birchfield held that a person could not be criminally punished for refusing to submit to a warrantless, unlawful blood test. See Birchfield v. North Dakota, 579 U.S. 438, 478, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016) (“[u]nable to see any other basis on which to justify a warrantless test of [the defendant‘s] blood, we conclude that [he] was threatened with an unlawful
Prior to concluding, we address one additional argument Strong makes in reliance on language from Birchfield. Strong points to language in that opinion stating that a person “‘has no right to resist [a] search‘” backed by a warrant. Birchfield, 579 U.S. at 455 (quoting Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968)). She suggests that this language recognizes that a person is not capable of refusing a blood test supported by a warrant. We disagree. It does not follow from the fact that one is not legally justified in refusing a search that one is also incapable of refusing. We can discern no constitutional barrier to Strong‘s conviction for refusal to submit to a chemical blood test.
CONCLUSION
Because Strong‘s assignments of error are without merit, we affirm her conviction.
AFFIRMED.