A-13-0045, State of Nebraska v. Clifford L. Rush (Appellant)
District Court for Lancaster County, District Judge John A. Colborn
Attorney for Appellant: John C. Jorgensen (Lancaster County Public Defender’s Office)
Attorney for Appellee: Kimberly A. Klein (Attorney General’s Office)
Criminal Action: DUI, 3rd offence with refusal to submit to a chemical test; driving during revocation
Action taken by the Trial Court: The jury convicted Rush on both counts. The trial court sentenced him to 4 to 5 years on count I and 3 months on count II, to be served concurrently, but consecutive to any other previously imposed sentence. The court also suspended Rush’s driver’s license and revoked his driving privileges for 15 years.
Assignments of Error on Appeal: Did the trial court err in admitting evidence illegally seized from Rush? Did the trial court err in admitting statements made by Rush to law enforcement? Did the trial court err in admitting evidence Rush failed to submit to a breath test? Did the trial court make sufficient findings of fact when denying Rush’s motions to suppress? Was there sufficient evidence to support Rush’s DUI conviction? Did the trial court impose an excessive sentence?
Facts: Officers Kossow and Roach were on patrol. They were running plates when they ran a plate to a blue van. The plate came back as registered to Timothy Rush who had a suspended license. Roach pulled up a photo of Timothy Rush as Kossow drove the car alongside the van. When it stopped at a red light, Roach compared the driver with the computer photo and believed they were the same person. Kossow activated his lights. When the van failed to stop, Kossow “chirped” his siren. The van pulled into a gas station and the driver exited. At this time, Kossow saw the driver was not Timothy Rush but his brother, Clifford, whom Kossow knew from previous contacts. Kossow and Roach testified the two men looked quite similar in appearance.
Upon making contact with Appellant, Kossow smelled an odor of alcohol and observed swaying, slurred speech and watery, bloodshot eyes and droopy eyelids. Kossow asked Appellant if he had been drinking and Appellant admitted he had one beer. Kossow asked Appellant if he should be driving and Appellant admitted he had a suspended license and shouldn’t be driving. Kossow administered field sobriety tests which showed further impairment. He failed a preliminary breath test.
Appellant was arrested and taken to the station. He was read the Post Chemical Test Advisement Form. Appellant refused to sign the form and became belligerent. Roach checked Appellant’s mouth for foreign objects per regulations and started the 15 minute observation period. At the end of the observation period, Appellant refused to take the breath test stating he already took a test. Both officers testified they explained to Appellant that he needed to take this test as well. Appellant refused and became upset and out of control.
Appellant challenges the admission of the evidence arguing it was seized in violation of his 4th Amendment rights. He argues the stop was made without reasonable suspicion. He argues there were many contradictory statements as to who saw the driver, which side of the blue van the car pulled alongside prior to the stop and both officers admitted it was night time and it was dark outside. He argues the “reasonable suspicion” was based on a very brief view of the driver in a dark van during night time hours. He argues there were no specific and articulable facts upon which to base a reasonable suspicion. The State asserts reasonable suspicion entails some minimal level of objective justification for detention, something more than an unparticularized hunch but less than the level required for probable cause. The State argues the key is whether it was reasonable to believe that Timothy Rush was the driver and if that belief was reasonable, then the stop was lawful. Based on the testimony from the officers, the van was registered to Timothy Rush, the photos the officers had available looked similar to the person driving the van and Kossow testified that he knew both Appellant and Timothy and they were similar in appearance.
Appellant challenges his statements he gave to police as statements obtained in violation of Miranda. He argues that he was in custody and had not been given Miranda. The State argues preliminary investigative questions, such as those in Terry stops or traffic stops are not considered custodial interrogations. The State argues that asking if Appellant had been drinking or if Appellant had a valid license were part of normal investigative functions.
Appellant argues the court failed to make specific findings of fact in the overruling his motion to suppress in violation of State v. Osborn, 250 Neb. 57, 547 N.W. 2d 139 (1996). He argues there was no determination if the denial was based on factual contentions or a legal basis. The State disagrees (also citing to Osborn, supra) and argues the order of the specificity suggested by Appellant would create a suppression order determining admissibility line by line and statement by statement which is far more than contemplated by Osborn.
Appellant next argues it was error to find the post-arrest advisement form was correctly worded in compliance with Neb. Rev. Stat. § 60-6,197(5) and State v. Turner, 263 Neb. 896, 644 N.W. 2d 147 (2002). He argues the language that he could be charged “with a separate crime” if he refused was not sufficient to inform him that the separate crime he was ultimately charged with was a felony. He argues the form should advise the person of the actual criminal charge that could be filed as a result. The State argues the form clearly complies with the statutory requirements of § 60-6,197(5). The State argues there is no requirement in either statute or case law that the offender be advised of the actual crime, whether it’s a felony based on a repeat offense or aggravated offense.
Appellant’s next errors relate to sufficiency of the evidence and sentence imposed.