State v. Pickinpaugh

762 N.W.2d 328, 17 Neb. Ct. App. 329
CourtNebraska Court of Appeals
DecidedJanuary 20, 2009
DocketA-08-499
StatusPublished
Cited by2 cases

This text of 762 N.W.2d 328 (State v. Pickinpaugh) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pickinpaugh, 762 N.W.2d 328, 17 Neb. Ct. App. 329 (Neb. Ct. App. 2009).

Opinion

762 N.W.2d 328 (2009)
17 Neb. App. 329

STATE of Nebraska, Appellee,
v.
Jeffery PICKINPAUGH, Appellant.

No. A-08-499.

Court of Appeals of Nebraska.

January 20, 2009.

*331 Justin J. Cook, of Lincoln Law, L.L.C., Lincoln, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

INBODY, Chief Judge, and SIEVERS and MOORE, Judges.

SIEVERS, Judge.

Jeffery Pickinpaugh was convicted of driving under the influence of alcohol and sentenced to 6 months' probation with several conditions. His driver's license was also revoked for 60 days. The district court affirmed the county court's order, and Pickinpaugh appealed to this court. For the reasons set forth herein, we affirm. Pursuant to our authority under Neb. Ct. R.App. P. § 2-111(B)(1), we have ordered this case submitted for decision without oral argument.

FACTUAL AND PROCEDURAL BACKGROUND

On March 16, 2007, Pickinpaugh was pulled over at 4:30 a.m. by Officer Gerald Klinetobe of the Wayne Police Department. Klinetobe had received a call from dispatch saying a citizen, Javon McNeal, witnessed a one-car accident involving a utility pole. McNeal identified Pickinpaugh's vehicle as the vehicle that hit the pole and provided officers with the license plate number of the car. McNeal followed Pickinpaugh's vehicle after such accident and continued to do so until Klinetobe arrived so she could point out the vehicle to the officer. Klinetobe noticed that there was damage to the passenger-side front fender of Pickinpaugh's vehicle and that the license plate on his car matched the one given earlier by McNeal. Klinetobe then signaled Pickinpaugh to pull over, and Pickinpaugh pulled into a church parking lot. Klinetobe asked Pickinpaugh whether he had hit a utility pole, and he answered in the affirmative. Klinetobe noticed Pickinpaugh had bloodshot and watery eyes, slurred speech, and an odor of alcohol. Pickinpaugh admitted that he had *332 "quite a few" drinks that evening. Klinetobe began to administer field sobriety tests, but at that time, there was a group of people gathering in the parking lot of the church to leave for a trip, and Pickinpaugh refused to do the tests in front of them. Klinetobe arrested Pickinpaugh for leaving the scene of an accident and the "pending investigation" for driving under the influence, handcuffed him, and transported him to the police station to conduct the field sobriety tests. Pickinpaugh failed all three tests Klinetobe had him perform. About 1½ hours after the initial stop, Pickinpaugh submitted to a chemical test, which showed he had .135 of a gram of alcohol per 210 liters of breath.

Pickinpaugh was charged with driving while under the influence of alcohol, a violation of Neb.Rev.Stat. § 60-6,196 (Reissue 2004) with the penalty prescribed by Neb.Rev.Stat. § 60-6,197.03(1) (Cum.Supp. 2006), a Class W misdemeanor. Pickinpaugh was also charged with failure to stop following an accident involving property damage, a Class II misdemeanor and violation of Neb.Rev.Stat. § 60-696 (Cum. Supp.2006). Pickinpaugh filed a motion to suppress/motion in limine on July 12, 2007, for suppression of all observations made of and statements by Pickinpaugh, results of his chemical test, and any derivative evidence, because his arrest violated his Fourth and Fifth Amendment rights and the officer lacked reasonable grounds to believe Pickinpaugh was operating a motor vehicle while under the influence of alcohol. The county court for Wayne County overruled this motion. The county court conducted a bench trial on October 1, made findings of fact, and found Pickinpaugh guilty of driving under the influence of alcohol but not guilty of failure to stop following an accident, because the State failed to show damage to the pole as required by the statute. Pickinpaugh was sentenced to 6 months' probation with conditions, a fine, and a driver's license suspension for 60 days. Pickinpaugh appealed to the district court for Wayne County, and the conviction was affirmed on April 16, 2008. Pickinpaugh appeals the district court's ruling to this court.

ASSIGNMENTS OF ERROR

Pickinpaugh assigns as error (1) the county court ruling that allowed the testimony of the arresting officer regarding the informant to establish reasonable suspicion for the stop, (2) the district court ruling that evidence of the field sobriety tests was admissible for purposes of supporting probable cause for Pickinpaugh's arrest, and (3) the district court ruling that an arrest for driving under the influence was not a prerequisite before requiring Pickinpaugh to submit to a chemical test of his breath under Nebraska's implied consent law.

STANDARD OF REVIEW

[1] Both a district court and a higher appellate court generally review appeals from a county court for error appearing on the record. State v. Trampe, 12 Neb.App. 139, 668 N.W.2d 281 (2003).

[2, 3] A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996). In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. Id.

[4] Pickinpaugh moved to suppress all of the evidence resulting from his arrest, including the results of the chemical test, both pretrial and at the start of the October *333 1, 2007, bench trial. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress. State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).

[5, 6] Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996). Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Big John's Billiards v. Balka, 260 Neb. 702, 619 N.W.2d 444 (2000).

ANALYSIS

Reasonable Suspicion for Investigatory Stop.

[7, 8] Pickinpaugh alleges in his brief that the motion to suppress should not have been denied, because Klinetobe did not have reasonable suspicion to stop his vehicle, in that there was no factual foundation to explain the information Klinetobe received from dispatch. He argues that absent reasonable suspicion for the investigatory stop, such stop was improper, and the motion to suppress was improperly denied. Thus, we must determine whether there was reasonable suspicion using the appropriate standard of review.

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Cite This Page — Counsel Stack

Bluebook (online)
762 N.W.2d 328, 17 Neb. Ct. App. 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pickinpaugh-nebctapp-2009.