Nebraska Supreme Court affirms defendant's conviction for driving while intoxicated, fourth offense, over his objection that records of two prior convictions were invalid because the records the State offered to prove the prior offenses lacked file stamp dates. State v. Macek, S-08-1196, 278 Neb. 967 Mark A. Macek appeals his guilty plea and conviction in the Lancaster County District Court for driving under the influence of alcohol, fourth offense, 60-6,197.03 (7). Macek claims that two of his three prior convictions were improperly used to enhance his sentence because they were not final, appealable orders. We affirm the decision of the district court. Macek is making an impermissible collateral attack on his prior DUI convictions and that those prior convictions were properly used for enhancement purposes.

Nebraska Supreme Court allows testimony of police officer who was certified as a "drug recognition expert" (DRE) that defendant was too impaired from marijuana to drive over defendants Daubert objection. State v. Daly, S-08-192, 278 Neb. 903. "Although (research on the validity of DRE evaluations has) not always published in (peer-reviewed journals) per se, DRE research has been the subject of considerable scientific scrutiny..(the) use of the protocol and its various elements has certainly not been kept a secret nor is there evidence that its proponents have attempted to avoid the limelight..(the) risk of a false positive is low. Any risk is mitigated further by the fact that identifying the specific drug that caused a driver’s impairment is inessential—the DUI statute only requires proof that the defendant was under the influence of "any drug" and does not require the drug to be identified by the arresting officer (§ 60-6,196 )."

Order of the Kneepads Update: Nebraska Supreme Court disbars attorney who practiced law while she was suspended for not paying bar dues, for multiple dui and driving while suspended convictions, and for not responding to complaints. Attorney had a prior private reprimand for practicing law while suspended for non-payment of dues. State ex rel. Counsel for Dis. v. Carbullido, S-08-1203, 278 Neb. 721. The evidence establishes that Carbullido has repeatedly violated the law, court orders, and the Nebraska Rules of Professional Conduct. Cumulative acts of attorney misconduct are distinguishable from isolated incidents, and they justify more serious sanctions. Indeed, we have said that ordinarily, cumulative acts of misconduct can, and often do, lead to disbarment. In this case, Carbullido demonstrates a continued pattern of disregard for the rules she must abide by as a lawyer and as a law-abiding citizen. She has continued to flaunt these rules after being given multiple warnings and less severe punishments. We order that Carbullido be disbarred from the practice of law in the State of Nebraska, effective immediately. Carbullido is directed to comply with Neb. Ct. R. § 3-316, and upon failure to do so, she shall be subject to punishment for contempt of this court. Carbullido is further directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007) and § 3-310(P) and Neb. Ct. R. § 3-323 within 60 days after an order imposing costs and expenses, if any, is entered by the court.

Nebraska Court of Appeals denies Cass County District Court defendant's plea in bar (§ 29-1817 (Reissue 2008) ) to continued prosecution for Driving Under the Influence, enhanced for refusing to take a chemical test, when the defendant plead guilty to refusing to take a chemical test. State v. Grizzle, A-09-327, 18 Neb. App. 48 "DUI (60-6196) and refusal to submit (60-6197) are not the same offense for double jeopardy purposes and that the State is not barred from prosecuting multiple offenses in a single prosecution. Grizzle’s claim that the penalty provision for third-offense DUI subjected him to multiple punishments is not ripe for appellate review. Accordingly, we affirm the denial of Grizzle’s plea in bar."

Nebraska Supreme Court allows Lancaster County District Court judge to order a two year license revocation to commence as soon as the state released defendant from prison or put him on parole. State v. Fuller, S-08-1253, 278 Neb. 585 "§ 60-4,108, states a license revocation is to begin on the date that is ordered by the court. Obviously, some drivers may not be in a position to drive until they have served their sentence of incarceration. Therefore, the court is given the discretion to determine when the license revocation pursuant to § 60-4,108 is to begin, including after the completion of a period of confinement. ..Section 60-4,108 is not ambiguous. The language "from the date ordered by the court," see id., clearly means "from the date selected by the court," giving the district court the discretion to determine the beginning date of the operator’s license revocation. "

Nebraska Court of Appeals allows uncounseled prior DUI conviction for enhancement when sentence was stand-alone probation and subsequent offense for DUI 2nd offense. State v. Wilson, A-08-1337, 17 Neb. App. 846. New charge was DUI 2nd offense, more than 0.15, Neb. Rev. Stat. § 60-6,196 (Reissue 2004), which is a Class I misdemeanor under Neb. Rev. Stat. § 60-6,197.03(5) (Supp. 2007). At the time, her breath alcohol content was .215 grams per 210 liters of her breath. "we hold that a prior conviction resulting in a sentence of probation, and not actual imprisonment, can be used for enhancement in subsequent proceedings without a showing that the defendant had or waived counsel in the prior proceeding. Because Wilson was sentenced to probation and a fine and no term of imprisonment was actually imposed, Wilson was clearly not entitled to counsel for her misdemeanor conviction for DUI in 2003—on constitutional or any other grounds."

Nebraska Court of Appeals reverses administrative license revocation when police officer did not make statement in sworn report that defendant was operating a vehicle while intoxicated. Defendant was outside vehicle after 1 car accident. "the arresting officer did not make a traffic stop and failed to include sufficient factual allegations in the Sworn Report to indicate an allowable inference that Barnett, of the people on the scene at the time of the officer’s arrival, was the one who had been driving the vehicle. As such, the Sworn Report in the present case was insufficient to confer jurisdiction on the Department "Barnett v. Department of Motor Vehicles, A-08-211, 17 Neb. App. 795

Kearney liquor store loses its license after selling alcohol to a minor who later died as a passenger in automobile accident. Nebraska Supreme Court affirms liquor license revocation because the defendant liquor store failed to prove that the minor's Canadian identification card that he had presented in the past to purchase alcohol was a valid identification card. Although the Commission permitted a community activist to speak to urge the Commission to revoke the store's license the District Court judge cured any error because she did not consider the citizen's comments when reviewing the Commission's revocation ruling. JCB Enters. v. Nebraska Liq. Cont. Comm., S-06-1373, 275 Neb. 797 When the district court conducts its review of a final decision of the Commission, it is required to make independent factual determinations. In its proceedings for review of a final decision of the Commission, the district court shall conduct the review de novo on the record of the agency. Id. In this case, the district court stated in its order that when it conducted its de novo review, it “specifically ha[d] not considered any evidence which was not received at the actual hearing in this matter which took place before the Commission.” T hus, any irregularities before the Commission were cured when the district court ignored R iibe’s comments in its de novo review of the record in the instant case.

Case summary: Omaha attorney gets to take her Third offense driving while intoxicated case to the Nebraska Supreme Court. Nebraska Judicial Branch Case Summaries. S-07-0464, State (Appellant) v. Willow T. Head Douglas County, Judge Peter C. Bataillon Attorneys: James M. Masteller (County Attorney’s Office) (Appellant) --- James E. Schaefer, Jill A. Daley (Gallup & Schaefer) Criminal: DUI, 3rd offense Proceedings below: The trial court found two valid prior convictions and enhanced Head’s DUI to 3rd offense. The State filed an application for error proceedings which was granted. The Nebraska Court of Appeals in 2006 sent the case back to the District Court because Head's motion to quash evidence of the prior convictions was not ripe for review. State v. Head, 712 N.W.2d 822, 14 Neb.App. 684 (Neb.App. 04/18/2006) The Court of Appeals reversed the decision of the district court and remanded with directions. See State v. Head, memorandum opinion, A-07-0464, January 3, 2008. Head filed a petition for further review which was granted by the Nebraska Supreme Court. Issues on Review: The court of appeals (1) had no statutory authority to remand for further proceedings under Neb. Rev. Stat. § 29-2316 because jeopardy attached; (2) erred in relying on State v. Keen, 272 Neb. 123 (2006) to reach the finding that the district court improperly rejected Head’s 2002 DUI conviction based on its interpretation of State v. Loyd, 265 Neb. 232 (2003) as State v. Keen did not overrule State v. Loyd.

On his third trip to the Nebraska Supreme Court for driving while intoxicated second offense defendant Lloyd, the Supreme Court holds that the Douglas County Attorney's office did not miss the 29-110 statute of limitations for retrying him for DWI 2nd offense. State v. Lloyd, S-06-1113, 275 Neb. 205 The Supreme Court initially ruled that the City of Omaha could not prosecute him under the Omaha municipal code driving while intoxicated 2nd offense section because the municipal dwi code section was inconsistent with state law ( State v. Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003).. Then the Douglas County Attorney refiled the cases against the defendant for DWI 2nd offense under Nebraska statutes § 60-6,196(2) and the Nebraska Supreme Court dismissed the defendant's interlocutory appeal because his statute of limitations objection was not a final order State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).. Finally after the Douglas county court found defendant guilty of DWI2ndMcCormack) rules the Douglas County Attorney did not miss the 18 month statute of limitations under 29-110 because the time the case was pending on appeal tolled the limitations period. “pending” means: “Begun, but not yet completed; unsettled; undetermined; in process of settlement or adjustment. T hus, an action or suit is ‘pending’ from its inception until the rendition of final judgment.”Loyd’s case remained pending while on appeal to the district court and this court. T he statute of limitations under § 29-110(1) was tolled during that period, and the March 18, 2003, complaint was timely filed."

Nebraska Supreme Court reverses the Platte County District Court and allows the Department of Motor Vehicles to seek to enhance a driver's license suspension if the driver had a prior alcohol-related license suspension. Stenger v. Department of Motor Vehicles, S-06-1176, 274 Neb. 819 § 60-498.01 permits the hearing officer at the Administrative License Revocation hearing (ALR) the receive evidence for enhancement at a revocation hearing. A lthough 60-498.01 limits the issues under dispute, it does not prohibit evidence pertinent to the ultimate disposition of a case after those issues have been resolved. Whether a person’s driver’s license has previously been revoked is relevant evidence in determining the length of the revocation under § 60-498.02(1)(b). Therefore, § 60-498.01 allows receiving the driving abstract to enhance a revocation, and we hold that a driving abstract may be admitted in an A LR proceeding for that purpose. A party still may contest the accuracy of the abstract as to whether the party did in fact have a prior revocation. S ection 60-498.02(1)(b) explicitly provides that if a driving abstract shows that the driver had a revocation in the prior 12 years, the revocation can be enhanced to 1 year. T herefore, the Legislature clearly intended for the Department to consider such matter in the ALR proceedings

Police stopping drunken driving suspects do not need to give Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) warnings to drivers before conducting interrogations immediately after the traffic stop. Nebraska Court of Appeals affirms drunk driving conviction. State v. Brauer, A-07-256, 16 Neb. App. 257 “‘The police may interview suspects not in custody and not subject to coercion in on-the-scene investigations for the purpose of determining whether a crime has been committed and who committed it.’” State v. Holman, 221 Neb. 730, 380 N.W.2d 304 (1986). Roadside questioning of a driver detained pursuant to a routine traffic stop does not constitute custodial interrogation for purposes of Miranda. (State Patrolman) placed Defendant in the cruiser to conduct on-the-scene investigation and questioning, based on his reasonable suspicion that Defendant might have been driving while intoxicated. We conclude that the county court did not err in denying Defendant’s motion to suppress his statements."

Although Justice Stephan doesn't think police officers have rights to free speech, he and his fellow Solons on the Nebraska Supreme Court think that a little law school wouldn't hurt them. Snyder v. Department of Motor Vehicles 274 Neb. 168. The Supreme Court majority throws out an administrative license suspension from Douglas County because the police officer marked "speeding over 20 mph, DUI" as the reason for the arrest. Now if the busy Omaha Police Department officer who stopped this drunk driver who was driving over 20 mph over the speed limit had been to law school, he would have known that although that's the ticket he issued to this drunk driving menace, that was a mere legal conclusion and did not state "facts" to make the wise Supreme Court justices happy. So what if Supreme Court justices and their clerks dream up these technicalities while sitting in their State Capitol chambers and law libraries, the form has TWO AND A HALF INCHES for the officer to state his reasons for arresting the suspect and the burden of the paperwork is not "onerous," even for busy policemen who must complete these forms at all hours and in all weather conditions. Dissenting Chief Justice Heavican seems to be the only judge on the court who agrees to see the real world, and finds the court decision's thwarting effective drunk driving enforcement.

Follow up: Lets call this "Danielle's Law." Legislature moves to eliminate loophole for repeat drunk drivers who refuse alcohol tests to avoid enhanced penalties. Journalstar.com Last year the Legislature created stiffer penalties for repeat drunken driving offenders with very high blood alcohol content levels. But senators didn’t make changes to the penalties for refusal to take the test. So repeat offenders who refuse to take the test cannot be charged with the stricter high-BAC charge, but face the lower penalty. Senators gave first-round approval Wednesday to a measure (LB578) that treats repeat offenders who refuse to take the test that measures the level of alcohol in the blood the same as those who take the BAC and have a high blood alcohol content

• Follow up: The slap on the wrist Lancaster County Court gave Senator Danielle Nantkes wasnt hard enough to hurt her pool and dart teams' chances at Brewsky's: Nantkes pleads to 1st offense drunk driving other charges dropped, probation and license impoundment for 60 days. Nanktes gets probation the day she pleads to reduced charges. How many other dui defendants get paper the day they plead without going through the county court probation office purgatory?

The Nebraska supreme court requires police to have probable cause to stop vehicles for drunk driving, except at night when the driver might actually want the officer's assistance. When the state patrol trooper stopped the defendant on a Washington County highway at 300AM, the "community caretaking" exception to the fourth amendment permitted the policeman's investigative stop. State v. Bakewell, S-06-765, 273 Neb. 372. Better known cases of the "caretaking" exception involved the police departments' seizing evidence they found in impounded vehicles. The Nevada supreme court refused to extend the caretaking exception to traffic stops "theincidentinquestionoccurredat3:15- a.m. there was little or no traffic present on this stretch of high way at the time of the incident the defendant's vehicle stopped orslowed considerably five times within approximately 90 secondswhile traveling down the highway, with the vehicle eventually-pulling off on to the shoulde rof the road. Considering the totality of the circumstances, it was reasonable for Groves to conclude that the Defendant was lost or that something was wrong"

Driver’s license applicant had been involved in a couple drunken driving incidents in Nebraska and also several other traffic incidents in Missouri while holding a Missouri drivers license. Missouri revoked the applicant’s license for 1 year and additionally imposed an additional five year ineligibility to obtain a license on the applicant. § 302.060(10) RS Mo. After the 1 year but before Missouri issued a new driver’s license he applied for a Nebraska permit. Nebraska Supreme Court agrees that he was not eligible for a Nebraska driver’s license because he was a revoked Missouri driver until the State issued a new license. Wilczewski v. Neth, S-05-1378, 273 Neb. 324 “Although Wilczewski’s 1 year revocation (from Missouri) has ended, he is still ineligible under Missouri law to renew or restore his prior Missouri driver’s license. We conclude that for purposes of the motor Vehicle Operator’s License Act, Wilczewski’s current period of ineligibility in Missouri constitutes a revocation as it is defined by § 60-476.01. Under Nebraska law, an individual may not be licensed to operate a motor vehicle in Nebraska if he has a Driver’s license that is currently revoked in another state. §60-486 RRS Neb. Because Wilczewski’s Missouri driver’s license is currently revoked for purposes of Nebraska law, Wilczewski may not be licensed to drive in this state until his 5year period of ineligibility to drive in Missouri has ended.”

Aren't we lucky we have a State Senator who can think on her feet while soused? ? Although it looked bad for Senator Danielle Nantkes to refuse to take any alcohol tests after she collided with a snowplow truck last month, she can at least avoid much jail time, if any. Lancaster County district court judge Cheuvront sentenced Russell Kyle to four concurrent four to twelve year terms for multiple counts of felony drunk driving fourth offense. Reporter Butch Mabin noted the prosecutor's complaint that she could not charge the defendant with more serious crimes because during some of the defendant's prior arrests, he refused chemical tests. Under the new Nebraska drunk driving law that took effect last summer (LB925; 60-6,197.03) Drunk drivers with priors face stiffer punishment if they test over .15 during their current cases. Senator Nantkes has a prior from 1997, so if he shad blown and tested over .15 she cold have faced a one to fifteen year license revocation and 90 days in jail. Since she refused however, even if she is convicted she is unlikely to face jail time.

Nebraska Supreme Court refuses to require wholesale disruption of criminal prosecutions although the some courts have suggested that the cases Crawford v Washington and Davis v Washington required the in court testimony of technical witnesses to give the necessary foundation testimony for breath tests and speed detecting radar guns. State v. Jacobson, S-06-195, 273 Neb. 289, and State v. Fischer, 272 Neb. 963 (2007) In two traffic related appeals this year the Nebraska Supreme Court overruled defendants' objections that the technicians who certified the intoxication and speed detection devices should have appeared to testify that the devices were working properly. Fisher lost when the Supreme Court ruled that the technician's certification of the intoxication devices were not testimonial because the certifications were routine administrative tasks and too attenuated from the prosecution of the charges against Fischer for the statements to be ‘testimonial’ in the sense required under Crawford (Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), Davis (Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)), The Defendant Jacobsen lost when the Supreme Court agreed with the District Court that the technicians report authenticating the tuning forks and workings of the radar gun were also not testimonial. Fischer is analogous to the Jacobsen's case. Applying the reasoning of statements in the document certifying the accuracy of the tuning forks were nontestimonial. The “Certificate of Calibration and Accuracy” was prepared in the course of the State patrol technician’s routine duties to ensure that the tuning forks used to calibrate and test the radar unit oscillated at the proper speeds. Certification was required annually, whether or not the certification document would eventually be used in a criminal prosecution. The statements contained in the certification document did not pertain to any particular defendant. They were made over 6 months before Jacobson was cited for speeding. Thus, the statements “were too attenuated from the prosecution of the [speedingcharge] against [Jacobson] for the statements to be ‘testimonial.’” Fischer, 272 Neb. at 972, 726 N.W.2d at 183

Omaha attorney loses his appeal from a one year license revocation for refusing an alcohol test even though the Douglas county court eventually acquitted him of refusing to take a breath test. Betterman v. Department of Motor Vehicles, S-05-638, S-06-823 , 273 Neb. 178 . the appellant is pro se and an attorney who brings many issues up on this license appeal, all of which he loses. Still someone liked him because he was acquitted of the same charges in county court; only the administrative revocation stuck. Appellant wanted to challenge on appeal the partiality of the administrative hearing officer who would be an employee of the DMV. Attorney failed to challenge this at the hearing but sought to offer judicial notice of the hearing officer's status at the District Court. Supreme Court agrees that even with notice of adjudicative facts, the appellant may not supplement the record at District court if he did not offer it at the administrative hearing. Further the appellants acquittal, even if this would be newly discovered evidence against his revocation does not affect the administrative license revocation for refusing to test. "Assuming that the court could take judicial notice of the hearing officer's employment as an adjudicative fact, (the supreme court) would not take judicial notice of it. See Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997): in a contested case under the APA, a court may not take judicial notice of an adjudicative fact that was not presented to the agency, because the taking of such evidence would impermissibly expand the court’s statutory scope of review de novo on the record of the agency. The APA does not authorize a district court reviewing the decision of an administrative agency to receive additional evidence, whether by judicial notice or other mean. To the extent Vinci v. Nebraska Dept. of Corr. Servs., 253 Neb. 423, 437, 571 N.W.2d 53, 62 (1997). See, also, Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995) suggested otherwise, the court disapproves of them. In the present case, even if evidence of Betterman’s acquittal in the criminal case were to be admitted in a new ALR hearing, its admission would not affect the outcome. Therefore, the district court did not err in refusing to reverse the director’s order.