Intoxilyzer test in Nebraska

2020In response, the Nebraska Supreme Court held: In State v. Kubik, [ 235 Neb. 612 , 456 N.W.2d 487 (1990),] we explained that the State is not required to prove a temporal nexus between the test and the defendant’s alcohol level at the moment he or she was operating the vehicle.

2020In response, the Nebraska Supreme Court held: In State v. Kubik, [ 235 Neb. 612 , 456 N.W.2d 487 (1990),] we explained that the State is not required to prove a temporal nexus between the test and the defendant’s alcohol level at the moment he or she was operating the vehicle.

2014Muhic argues that the present case is comparable to the situation presented in State v. Lessley, 257 Neb. 903 , 601 N.W.2d 521 (1999).

2014Muhic argues that the present case is comparable to the situation presented in State v. Lessley, 257 Neb. 903 , 601 N.W.2d 521 (1999).

2014Despite a lack of any direct evidence of the defendant’s blood alcohol content when he was actually in control of the motorcycle, the evidence was sufficient to support a finding that the defendant had been DUI. -6- Similarly, in State v. Rodgers, 2 Neb.

2014Despite a lack of any direct evidence of the defendant’s blood alcohol content when he was actually in control of the motorcycle, the evidence was sufficient to support a finding that the defendant had been DUI. -6- Similarly, in State v. Rodgers, 2 Neb.

2014In State v. Blackman, 254 Neb. 941 , 580 N.W.2d 546 (1998), the Nebraska Supreme Court upheld a DUI conviction where the delay between an officer’s receiving a dispatcher’s notice that a motorcycle was observed in a ditch and administration of an Intoxilyzer test was approximately 1½ hours.

2014In State v. Blackman, 254 Neb. 941 , 580 N.W.2d 546 (1998), the Nebraska Supreme Court upheld a DUI conviction where the delay between an officer’s receiving a dispatcher’s notice that a motorcycle was observed in a ditch and administration of an Intoxilyzer test was approximately 1½ hours.

1996Hingst asserts that the advisory form read to him prior to his submitting to the Intoxilyzer test was inadequate because it was the same advisement ruled inadequate in Smith v. State, 248 Neb. 360 , 535 N.W.2d 694 (1995).

1996Hingst asserts that the advisory form read to him prior to his submitting to the Intoxilyzer test was inadequate because it was the same advisement ruled inadequate in Smith v. State, 248 Neb. 360 , 535 N.W.2d 694 (1995).

1990(Emphasis supplied.) Citing Seattle v. Gellein, 112 Wash. 2d 58 , 768 P.2d 470 (1989), the defendant complains that pursuant to the emphasized portion of the instruction, the jury was required to find that the State had proven the defendant’s breath alcohol concentration at the time of driving by the only chemical analysis, the Intoxilyzer test, “shown” during the trial.

1990(Emphasis supplied.) Citing Seattle v. Gellein, 112 Wash. 2d 58 , 768 P.2d 470 (1989), the defendant complains that pursuant to the emphasized portion of the instruction, the jury was required to find that the State had proven the defendant’s breath alcohol concentration at the time of driving by the only chemical analysis, the Intoxilyzer test, “shown” during the trial.

1990See, e.g., State v. Hvistendahl, 225 Neb. 315 , 405 N.W.2d 273 (1987) (a test made in compliance with § 39-669.11 is sufficient to make a prima facie case on the issue of blood alcohol concentration); State v. Tatara, 230 Neb. 279 , 430 N.W.2d 692 (1988) (Intoxilyzer test result was admissible pursuant to § 39-669.11); State v. Dush, 214 Neb. 51 , 332 N.W.2d 679 (1983) (a test made in compliance with § 39-669.11 is admissible and does not create a presumption of guilt, but may be sufficient to make a prima facie case on the issue of blood alcohol concentration).

1990See, e.g., State v. Hvistendahl, 225 Neb. 315 , 405 N.W.2d 273 (1987) (a test made in compliance with § 39-669.11 is sufficient to make a prima facie case on the issue of blood alcohol concentration); State v. Tatara, 230 Neb. 279 , 430 N.W.2d 692 (1988) (Intoxilyzer test result was admissible pursuant to § 39-669.11); State v. Dush, 214 Neb. 51 , 332 N.W.2d 679 (1983) (a test made in compliance with § 39-669.11 is admissible and does not create a presumption of guilt, but may be sufficient to make a prima facie case on the issue of blood alcohol concentration).

1990See, e.g., State v. Hvistendahl, 225 Neb. 315 , 405 N.W.2d 273 (1987) (a test made in compliance with § 39-669.11 is sufficient to make a prima facie case on the issue of blood alcohol concentration); State v. Tatara, 230 Neb. 279 , 430 N.W.2d 692 (1988) (Intoxilyzer test result was admissible pursuant to § 39-669.11); State v. Dush, 214 Neb. 51 , 332 N.W.2d 679 (1983) (a test made in compliance with § 39-669.11 is admissible and does not create a presumption of guilt, but may be sufficient to make a prima facie case on the issue of blood alcohol concentration).

1990See, e.g., State v. Hvistendahl, 225 Neb. 315 , 405 N.W.2d 273 (1987) (a test made in compliance with § 39-669.11 is sufficient to make a prima facie case on the issue of blood alcohol concentration); State v. Tatara, 230 Neb. 279 , 430 N.W.2d 692 (1988) (Intoxilyzer test result was admissible pursuant to § 39-669.11); State v. Dush, 214 Neb. 51 , 332 N.W.2d 679 (1983) (a test made in compliance with § 39-669.11 is admissible and does not create a presumption of guilt, but may be sufficient to make a prima facie case on the issue of blood alcohol concentration).

1989Nevertheless, Uwanaka contends his lawyer failed to investigate circumstances surrounding Uwanaka’s arrest, the blood alcohol test, and possible defenses, namely, “one of the three medications which Defendant was taking, Triavil, will potentiate the action of central nervous system depressants, enhancing the response to alcohol and barbituates [sic] and that another, Fiorinal, is a barbituate [sic].” We note that § 39-669.07 provides in part: “It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle: (1) While under the influence of alcoholic liq

1989Nevertheless, Uwanaka contends his lawyer failed to investigate circumstances surrounding Uwanaka’s arrest, the blood alcohol test, and possible defenses, namely, “one of the three medications which Defendant was taking, Triavil, will potentiate the action of central nervous system depressants, enhancing the response to alcohol and barbituates [sic] and that another, Fiorinal, is a barbituate [sic].” We note that § 39-669.07 provides in part: “It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle: (1) While under the influence of alcoholic liq

1987Even discarding the Intoxilyzer test result, the preliminary breath test result, State v. Klingelhoefer, 222 Neb. 219 , 382 N.W.2d 366 (1986), and the “horizontal gaze test” result, State v. Borchardt, supra, the remaining evidence that defendant had the odor of alcohol on his breath, slurred his speech, had bloodshot eyes, had trouble retrieving his license from his billfold, was disheveled, could not recite the alphabet, had difficulty in coordinating his movements, could not keep his balance, failed to stop at a stop sign, and crossed over the centerline of the road four or five times overw

1987Even discarding the Intoxilyzer test result, the preliminary breath test result, State v. Klingelhoefer, 222 Neb. 219 , 382 N.W.2d 366 (1986), and the “horizontal gaze test” result, State v. Borchardt, supra, the remaining evidence that defendant had the odor of alcohol on his breath, slurred his speech, had bloodshot eyes, had trouble retrieving his license from his billfold, was disheveled, could not recite the alphabet, had difficulty in coordinating his movements, could not keep his balance, failed to stop at a stop sign, and crossed over the centerline of the road four or five times overw

1987As stated recently in State v. Pointer, 224 Neb. 892, 895 , 402 N.W.2d 268, 271 (1987), “[I]n a criminal trial, after a pretrial hearing and order which overrules a defendant’s motion to suppress his statement, the defendant must object at trial to the receipt of the statement in order to preserve the question for review on appeal.” This holding was followed in State v. Roggenkamp, 224 Neb. 914 , 402 N.W.2d 682 (1987), where we refused to consider error assigned to the admission of evidence concerning Intoxilyzer test results because no objection was made to the evidence at the trial.

1987As stated recently in State v. Pointer, 224 Neb. 892, 895 , 402 N.W.2d 268, 271 (1987), “[I]n a criminal trial, after a pretrial hearing and order which overrules a defendant’s motion to suppress his statement, the defendant must object at trial to the receipt of the statement in order to preserve the question for review on appeal.” This holding was followed in State v. Roggenkamp, 224 Neb. 914 , 402 N.W.2d 682 (1987), where we refused to consider error assigned to the admission of evidence concerning Intoxilyzer test results because no objection was made to the evidence at the trial.