S-15-1009 State v. Bruce Rask
Kearney County, Judge Terri Harder
Attorneys: Melissa R. Vincent (Attorney General's Office) --- Kevin K. Knake (Law Office of Richard L. Alexander) (Appellant)
Criminal: DUI; evidence; jury instructions
Proceedings below: Following a jury trial, the county court found Appellant guilty of DUI, third offense, and sentenced him to a period of incarceration, a fine, and 15 year license suspension. The district court affirmed.
Issues: 1) The trial court erred by failing to restrict the State from offering evidence in regard to the performance of the preliminary breath test or his alleged failure to provide a blood sample and further erred by failing to declare mistrial after said irrelevant evidence was offered by the State thereby prejudicing Appellant's ability to have a fair trial due to such extraneous and irrelevant evidence being presented the jury, 2) the State engaged in prosecutional misconduct by raising the irrelevant and highly prejudicial issue of the performance of a preliminary breath test and his failure to provide a blood sample. 3) the trial court erred by incorrectly instructing the jury as to the definition of the term "Actual Physical Control of a Motor Vehicle" which mislead the jury and by giving the jury the impression that mere presence and dominion was sufficient to convict thereby relieving the state of its burden to show that that the defendant exercised control over the motor vehicle to the Appellant's Detriment. 4) the trial court erred by refusing to provide and instruct the jury on the affirmative defense of a choice of evils and therefore shifted the burden to the Appellant to his detriment.