State v. Tanner

448 N.W.2d 586, 233 Neb. 893, 1989 Neb. LEXIS 456

• Court: Nebraska Supreme Court
• Decided: December 1, 1989
• Docket: 88-1038
• Status: Published

Opinions

White, J.

After a trial to the court, the defendant, Kurt Tanner, was found guilty of driving while under the influence of alcoholic liquor. The defendant was sentenced to probation for a term of 1 year. Upon appeal to the district court, the judgment was affirmed.

The defendant has now appealed to this court and contends that there was insufficient evidence to find him guilty beyond a reasonable doubt and that the trial court erred in overruling his motion to dismiss. We affirm.

At 11:20 p.m. on May 19, 1988, after hearing a “squealing noise” coming from Tanner’s vehicle, Deputy Sheriff James Haith stopped the vehicle. Upon approaching the driver and requesting him to produce his driver’s license, Deputy Haith smelled alcohol on Tanner’s breath and observed an open 12-pack beer container inside the vehicle. He also noticed that a passenger in the vehicle had a can of beer in his hand.

Deputy Haith requested Tanner to perform several field sobriety tests, which Tanner failed. Tanner was then arrested, and a blood sample was subsequently taken from him for later analysis.

A complaint was filed on May 31, 1988, charging Tanner with operating a motor vehicle while under the influence of alcoholic liquor or of any drug, or while having a concentration of ten-hundredths of 1 gram or more by weight of alcohol per 100 milliliters of his blood.

On July 11, 1988, Tanner filed a motion for discovery, requesting that the blood sample be made available to him for further testing. On July 19 at a hearing on this motion, the trial judge ordered the prosecution to make the sample available to a lab of the defendant’s choice. After the State failed to comply with this order, the defendant, on July 25, moved to dismiss the case. At a hearing on this motion on August 11, the county attorney stated that the prosecution could not comply with the order because the blood sample had coagulated prior to or during the initial testing and was thus unsuitable for accurate testing. An initial test of the coagulated blood showed a .173 blood-alcohol content. The prosecution further stated that because of the unreliability of the blood sample, it would not use the test results in prosecuting its case. Tanner made no further request to have the State produce the sample so its condition could be verified by his lab. After noting that the proper remedy under Neb. Rev. Stat. § 29-1913 (Reissue 1985) would be to exclude the evidence, the trial court denied the motion to dismiss.

Also at this hearing, the State was granted leave to amend the complaint to allege only that Tanner was operating a motor vehicle while under the influence of alcoholic liquor.

After a bench trial on August 25, in which the State’s only evidence was the testimony of Deputy Haith, Tanner was found guilty on the amended complaint.

On appeal, Tanner first contends that there was insufficient evidence to find him guilty beyond a reasonable doubt. In determining the sufficiency of the evidence to sustain a criminal conviction, it is not the province of the Supreme Court to resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of explanations, or weigh the evidence; such matters are for the finder of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Swift, ante p. 55, 443 N.W.2d 613 (1989); State v. Washington, 232 Neb. 838, 442 N.W.2d 395 (1989); State v. Auman, 232 Neb. 341, 440 N.W.2d 254 (1989). Moreover, this court has previously held that a police officer’s opinion testimony, based on personal observations of the defendant, is sufficient to sustain a finding that the defendant operated a motor vehicle when the defendant was under the influence of alcohol. See, State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987); State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987); State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977). “As used in § 39-669.07, the phrase ‘under the influence of alcoholic liquor’ means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner.” State v. Burling, supra at 728, 400 N.W.2d at 875.

At trial, Deputy Haith testified that he has investigated approximately 24 driving while intoxicated cases since the beginning of 1988, that during his law enforcement training he received instruction on DWI procedures and field sobriety tests, and that he has observed the conduct of people who have consumed alcohol. He testified that upon asking Tanner for his operator’s license, he smelled alcohol on Tanner’s breath and observed an open 12-pack container in Tanner’s vehicle. Deputy Haith further testified that Tanner failed the three field sobriety tests that he requested Tanner to perform. He also stated on direct examination that based upon the field sobriety tests, it was his opinion that Tanner was driving under the influence of alcoholic liquor.

Taking the view most favorable to the State, Deputy Haith’s testimony, which was based on his observations of Tanner, provides sufficient evidence to support Tanner’s conviction for operating a motor vehicle while under the influence of alcoholic liquor. Tanner’s first assignment of error is without merit.

Tanner next contends that the trial court erred in overruling his motion to dismiss, which was made after the State failed to comply with the discovery order. Section 29-1913(2) provides:

If the evidence necessary to conduct the tests or analyses by the defense is unavailable because of the neglect or intentional alteration by representatives of the prosecuting authority, other than alterations necessary to conduct the initial tests, the tests or analyses by the prosecuting authority shall not be admitted into evidence.

The record is unclear as to the cause of the coagulation and the point at which the sample coagulated. Whether the coagulation was due to the neglect or intentional alteration by the State, the penalty is exclusion of the evidence. The statute does not provide for dismissal as a remedy. The trial court applied the only available remedy under § 29-1913(2) by suppressing the test results. State v. Brodrick, 190 Neb. 19, 205 N.W.2d 660 (1973). We further note that the failure to preserve evidence potentially useful to the defendant does not violate the 14th amendment due process clause unless the defendant shows that the officers acted in bad faith in destroying the evidence. Arizona v. Youngblood,_U.S___, 109 S. Ct. 333, 102 L. (1988). “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Youngblood, supra at 109 S. Ct. at 337 n.1. It is not enough that the unavailable evidence could have exculpated the defendant if preserved; the exculpatory value of the evidence must be apparent before the evidence was destroyed. Youngblood, supra.

In the present case, Tanner has made no such showing. An issue not presented to or passed upon by the trial court is not an appropriate issue for consideration on appeal. State v. Blair, 230 Neb. 775, 433 N.W.2d 518 (1988). Moreover, because Tanner did not demand that the sample be produced by the State so that its condition could be verified by his experts once it was learned that the sample had coagulated, he waived its production. The second assignment of error is without merit.

Affirmed.