State v. Kuhl

stAte of nebrAsKA, Appellee , v .
stephen c. K uhl , AppellAnt .
741 N.W.2d 701
Filed November 6, 2007. 	No. A-06-1393.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from
the county court, the district court acts as an intermediate court of appeal, and as
such, its review is limited to an examination of the county court record for error or
abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appellate court
generally review appeals from the county court for error appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
4. Criminal Law: Pretrial Procedure. Discovery in a criminal case is generally,
and in the absence of a constitutional requirement, controlled by either a statute or
court rule.
5. Pretrial Procedure: Appeal and Error. A trial court is vested with broad dis-
cretion in considering discovery requests of defense counsel, and error can be
predicated only upon an abuse of discretion.
6. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
7. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
8. ____: ____. Statutory language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to ascertain the meaning of statu-
tory words which are plain, direct, and unambiguous.
9. Words and Phrases. As a general rule, the word “shall” is considered mandatory
and is inconsistent with the idea of discretion.
10. Constitutional Law: Criminal Law: Statutes: Demurrer. In order to bring a
constitutional challenge to the facial validity of a criminal statute, the proper pro-
cedure is to file a motion to quash or a demurrer.
11. Constitutional Law: Statutes: Pleas: Waiver. Once a defendant has entered a
plea, or a plea is entered for the defendant by the court, the defendant waives all
facial constitutional challenges to a statute unless that defendant asks leave of the
court to withdraw the plea and thereafter files a motion to quash.
12. Pleas: Appeal and Error. Prior to sentencing, the withdrawal of a plea forming
the basis of a conviction is addressed to the discretion of the trial court, and its
ruling will not be disturbed on appeal absent an abuse of that discretion.
13. Trial: Expert Witnesses: Appeal and Error. The admission of expert testimony
is ordinarily within the discretion of the trial court, and its ruling will be upheld in
the absence of an abuse of discretion.
STATe v. kUhL 	127
Cite as 16 Neb. App. 127
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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14. Evidence: Words and Phrases. evidence is relevant when it has any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.
15. Rules of Evidence: Appeal and Error. The exercise of judicial discretion is
implicit in determinations of relevancy under Neb. Rev. Stat. § 27-401 (Reissue
1995) and prejudice under Neb. Rev. Stat. § 27-403 (Reissue 1995), and a trial
court’s decision under these evidentiary rules will not be reversed absent an abuse
of discretion.
16. Trial: Expert Witnesses. Triers of fact are not required to take opinions of experts
as binding upon them.
17. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence. Such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed most favorably to
the State, is sufficient to support the conviction.
18. Drunk Driving: Blood, Breath, and Urine Tests: Time. Matters of delay between
driving and testing go to the weight of the breath test results, rather than to the
admissibility of the evidence.
19. ____: ____: ____. A valid breath test given within a reasonable time after the
accused was stopped is probative of a violation of the driving under the influ-
ence statute.
20. Sentences: Probation and Parole. When a court sentences a defendant to proba-
tion, it may impose any conditions of probation that are authorized by statute.
21. ____: ____. The sentencing court may impose such reasonable conditions of
probation as it deems necessary or likely to ensure that the offender will lead a
law-abiding life.
Appeal from the District Court for Douglas County, J.
pAtricK mullen, Judge, on appeal thereto from the County
Court for Douglas County, stephen m. sWArtz, Judge. Judgment
of District Court affirmed.
Steven Lefler, of Lefler Law Office, for appellant.
Paul D. kratz, Omaha City Attorney, Martin J. Conboy III,
Omaha City Prosecutor, and J. Michael Tesar for appellee.
inbody, Chief Judge, and cArlson and moore, Judges.
moore, Judge.
INTRODUCTION
Stephen C. kuhl was convicted in the county court for
Douglas County of speeding and driving under the influence
(DUI). kuhl appealed his convictions to the district court, which
128 	16 NeBRASkA APPeLLATe RePORTS

affirmed the “judgment of conviction and sentence” entered by
the county court. Because we find that the county court’s deci-
sions conform to the law, are supported by competent evidence,
and are neither arbitrary, capricious, nor unreasonable, we affirm
the district court’s affirmance of kuhl’s “judgment of conviction
and sentence.”
BACkGROUND
On July 29, 2005, kuhl was charged with speeding, in vio-
lation of Neb. Rev. Stat. § 60-6,186 (Reissue 2004), and with
DUI, in violation of an Omaha city ordinance.
On September 13, 2005, kuhl filed a motion seeking an order
compelling the State to provide kuhl with (1) any modifications
or repairs conducted on the “breath machine” used in this case,
(2) the “‘Owner’s Manual’ for the subject machine,” and (3) the
“electrical and computer component configuration, including,
but not limited to, software, power supplies, processor boards,
pressure switches, Z80 chips, display boards and mortar boards
of the breath testing device upon which [kuhl] was tested.”
The county court heard kuhl’s motion on September 29,
2005, and we have set forth the details of the hearing as relevant
to this appeal in the analysis section below. The court entered an
order on October 4, ruling on kuhl’s motion. With respect to the
first two paragraphs of the motion, which had requested docu-
mentation and information on the “breath machine,” the court
granted kuhl’s motion. The court ordered the State to produce,
on or before October 26, documentation regarding modifications
and repairs on the machine used to obtain a breath sample from
kuhl in this case at the time of his arrest as well as the owner’s
manual and any other operator’s or usage manuals relating to
the machine.
With respect to kuhl’s request that the State provide “electri-
cal and computer component configuration,” the county court
noted that the State was unable, at the hearing, to provide the
court with any information as to whether it or the Omaha Police
Department was in possession of any such information or docu-
mentation. Accordingly, the court ordered the State to file with
the court, on or before October 26, 2005, a written report advis-
ing the court and kuhl as to whether any such documentation
STATe v. kUhL 	129
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existed. The State subsequently filed a report that it had the
owner’s manual and documentation concerning modifications or
repairs to the breath machine, which it would produce to kuhl,
but that it did not have the “electrical and computer component
configuration” information requested.
A hearing was conducted before the county court on November
17, 2005, to determine whether any further items as requested
in kuhl’s motion should be produced by the State. During this
hearing, the “electrical and computer component configura-
tion” information being sought by kuhl was described as the
“source code” for the machine. The court asked kuhl’s attorney
to explain further what he meant by the source code. kuhl’s
attorney responded:
My understanding, Judge, is that it’s the DNA of a machine.
It is a computer program that tells them — the machine
what to do, so you push a button, start the machine, and
you get a [breath test] result of .11. There is a number of
mechanical and electrical synapses that occur from point
“A” to the end point, and it’s — the computer — the source
code is the underlying computer technology in language
that tells the machine to do what it’s supposed to do.
The parties stipulated that the manufacturer of the DataMaster
machine at issue in this case would not provide the source
code to the State. We have set forth additional details about
the November 17 hearing as necessary in the analysis sec-
tion below.
The county court entered an order on November 29, 2005,
ruling further on kuhl’s motion. The court was convinced by
the representations made by the State, and not refuted by kuhl,
that the State was not in possession of the items described in
paragraph 3 of kuhl’s motion. The court cited Neb. Rev. Stat.
§ 29-1914 (Reissue 1995) concerning the limitation of orders
of discovery to items or information “‘within the possession,
custody, or control of the state or local subdivisions of govern-
ment’” and found it unquestionable in the present case that
the State was not in possession of “anything other than what
it ha[d] already produced.” Accordingly, aside from the items
already produced by the State, the court denied kuhl’s motion
as to all other remaining production sought by his motion.
130 	16 NeBRASkA APPeLLATe RePORTS

Trial was held before the county court beginning on January
18, 2006. The evidence shows that on May 12, 2005, at approxi-
mately 9:40 p.m., Omaha police officer Michael Joseph Frank
was sitting in his cruiser, operating stationary radar, when his
attention was drawn to a 1999 Subaru Forester. Frank estimated
that the Subaru was traveling at approximately 45 miles per
hour in a 30-mile-per-hour zone and confirmed its speed of
44 miles per hour with radar. Frank radioed ahead to Officer
Steven J. Garcia, another Omaha police officer, identified the
Subaru, and advised Garcia that it was traveling at an excessive
rate of speed. Garcia caught up to the Subaru and pulled it over
for speeding.
After stopping the Subaru, Garcia administered a number of
field sobriety tests to kuhl, and kuhl failed to perform some of
the tests up to Garcia’s expectations. Garcia placed kuhl under
arrest for speeding and suspicion of DUI and transported him
to a police station. At the station, Garcia read kuhl a postarrest
chemical test advisement form, and both Garcia and kuhl signed
the form. Garcia observed kuhl perform a breath test and then
cited kuhl for speeding and DUI.
Officer James Brady, a senior crime laboratory technician
with the Omaha Police Department, testified concerning the
breath test administered to kuhl and the maintenance of the
DataMaster machine used to test kuhl’s breath. Brady’s testi-
mony established that kuhl’s breath was tested by a DataMaster
machine located at police headquarters. Brady’s testimony cov-
ered the specific identity of the actual machine used to test
kuhl’s breath, the maintenance of the machine, the holders
of various permits to both maintain and conduct tests on the
machine in question, and the documentation relating to the
maintenance of the machine. Patricia A. Osier, a crime labo-
ratory technician, testified to the administration of the test of
kuhl’s breath, which test yielded a result of .100 of a gram of
alcohol per 210 liters of breath.
Dr. 	John Vasiliades 	testified 	on 	behalf 	of 	the 	defense.
Vasiliades acknowledged that he has not used the DataMaster
machine regularly but has read the manual on the machine and
kept up with the literature regarding the machine. Vasiliades
testified to the chemical process by which alcohol is ingested
STATe v. kUhL 	131
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by, absorbed into, and eliminated by a human; random increases
and decreases in breath alcohol called “spiking”; the appropri-
ate margin of error that Vasiliades believes should apply; and
purported flaws with respect to a DataMaster machine as used
for measuring breath alcohol, including various other substances
that can be detected by infrared spectrophotometry.
Trial resumed on February 8, 2006, and the county court
heard testimony from kuhl. The county court entered an order
on February 17 finding kuhl guilty of speeding 11 to 15 miles
per hour over the posted speed limit. With respect to the DUI
charge, the court noted that Nebraska statutes provide two
alternative bases, either of which can serve as the basis for
convicting an individual of DUI. With regard to the first basis,
the operation of the vehicle itself, the court found the evidence
adduced by the State insufficient to establish guilt beyond
a reasonable doubt. The court noted that while Garcia, who
administered certain field sobriety tests, testified that he did so
to determine kuhl’s level of intoxication, there was insufficient
testimony to establish a relationship between kuhl’s perform-
ance on the field sobriety tests and his ability to operate a motor
vehicle. With respect to the second basis, the concentration of
alcohol in the driver’s breath, after considering the evidence
adduced by both sides, the court was convinced beyond a rea-
sonable doubt that kuhl had a concentration of alcohol in his
breath in excess of the allowable limits, and accordingly, it
found kuhl guilty of DUI.
A sentencing hearing was conducted before the county court
on March 2, 2006. During the sentencing hearing, kuhl’s attor-
ney asked the court about the possibility of the use of “the igni-
tion interlock device for motor code.” The court declined kuhl’s
request to impose the use of an ignition interlock device.
The county court entered an order imposing sentence on
March 2, 2006. The court sentenced kuhl to probation for a
period of 12 months and revoked kuhl’s license for the first 60
days of the probationary period. The court also fined kuhl $400
and ordered kuhl to attend and complete a DUI class as well as
a victim impact class.
kuhl appealed his convictions to the district court, and
on November 8, 2006, the district court entered an order
132 	16 NeBRASkA APPeLLATe RePORTS

affirming the “judgment of conviction and sentence” imposed
by the county court. kuhl subsequently perfected his appeal to
this court.
ASSIGNMeNTS OF eRROR
kuhl asserts that the county court erred in (1) not requiring the
State to turn over the source code for the DataMaster machine,
(2) failing to allow kuhl to withdraw his previously entered
pleas of not guilty, (3) failing to allow kuhl to call an expert
witness at the November 17, 2005, hearing and not allowing two
technical documentation exhibits into evidence at that hearing,
(4) incorrectly applying a maintenance document marked exhibit
10 at the time of trial, (5) misapplying and misinterpreting the
testimony of Vasiliades, (6) not applying Vasiliades’ unrebutted
testimony regarding the margin of error of .030 grams per 210
liters of breath to the present case, and (7) refusing to allow the
use of an ignition interlock device as a condition of probation.
STANDARD OF ReVIeW
[1-3] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeal, and
as such, its review is limited to an examination of the county
court record for error or abuse of discretion. State v. Dittoe, 269
Neb. 317, 693 N.W.2d 261 (2005). Both the district court and a
higher appellate court generally review appeals from the county
court for error appearing on the record. Id. When reviewing a
judgment for errors appearing on the record, an appellate court’s
inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id.
ANALYSIS
Discovery of Source Code.
kuhl asserts that the county court erred in not requiring the
State to turn over the source code for the DataMaster machine.
kuhl argues that the court should have either required the State
to turn over the source code or dismissed the case due to the
State’s inability to turn over the source code; or, alternatively,
that the court should have prevented the State from using the
results of the breath test.
STATe v. kUhL 	133
Cite as 16 Neb. App. 127

The district court found that the county court correctly limited
discovery to items or information within the possession, custody,
or control of the State. The district court also found that the
county court correctly determined that the State should not be
prevented from using the results of the breath test which were
“subject to the source code.” The district court found that the
State showed that the DataMaster machine was reliable at the
time the testing occurred and that the results’ use was correctly
allowed by the county court.
[4-6] Discovery in a criminal case is generally, and in the
absence of a constitutional requirement, controlled by either a
statute or court rule. State v. Kinney, 262 Neb. 812, 635 N.W.2d
449 (2001). A trial court is vested with broad discretion in con-
sidering discovery requests of defense counsel, and error can
be predicated only upon an abuse of discretion. State v. Null,
247 Neb. 192, 526 N.W.2d 220 (1995). An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. State v. Floyd, 272
Neb. 898, 725 N.W.2d 817 (2007).
Section 29-1914 discusses limitation of discovery orders in
criminal cases. Section 29-1914 provides:
Whenever an order is issued pursuant to the provisions
of section 29-1912 or 29-1913, it shall be limited to items
or information within the possession, custody, or control of
the state or local subdivisions of government, the existence
of which is known or by the exercise of due diligence may
become known to the prosecution.
[7-9] kuhl urges this court to balance his Sixth Amendment
right of confrontation against the clear requirements of § 29-1914
and against any trade secret right that the manufacturer of the
machine in question might have. kuhl argues that he should be
assured the opportunity to examine the evidence against him
and that this requires the State to turn over the source code to
allow him to, “in a way, cross examine the machine and deter-
mine if it was in proper working order.” Brief for appellant at 7.
Section 29-1914 provides that discovery orders “shall be limited
to items or information within the possession, custody, or con-
trol” of the State. Statutory interpretation presents a question
134 	16 NeBRASkA APPeLLATe RePORTS

of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the determination
made by the court below. State v. Pathod, 269 Neb. 155, 690
N.W.2d 784 (2005). Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to
interpretation to ascertain the meaning of statutory words which
are plain, direct, and unambiguous. Id. As a general rule, the
word “shall” is considered mandatory and is inconsistent with
the idea of discretion. Id. The record is clear that the source
code is not in the State’s possession and that the manufacturer
of the machine in question considers the source code to be a
trade secret and the proprietary information of the company. We
find no abuse of discretion in the county court’s decision with
respect to the discoverability of the source code.
Withdrawal of Pleas.
kuhl asserts that the county court erred in failing to allow
kuhl to withdraw his previously entered pleas of not guilty
in order to attack the ordinance under which he was charged
with DUI as creating an unconstitutional presumption. kuhl
references a defendant’s right under the Fifth Amendment and
then argues:
however, in a [DUI] case, the Defendant is presumed
guilty if [he or she tests] .08 or above on the breathalyzer.
Once the results of this test are heard in the courtroom, the
Defendant is then required to take some affirmative action
to show his/her non-guilt. This rebuttable presumption
stands in stark contrast to a right guaranteed to a crimi-
nal Defendant.
Brief for appellant at 9.
[10-12] In order to bring a constitutional challenge to the
facial validity of a criminal statute, the proper procedure is to
file a motion to quash or a demurrer. State v. Liston, 271 Neb.
468, 712 N.W.2d 264 (2006). Once a defendant has entered a
plea, or a plea is entered for the defendant by the court, the
defendant waives all facial constitutional challenges to a statute
unless that defendant asks leave of the court to withdraw the
plea and thereafter files a motion to quash. Id. Prior to sentenc-
ing, the withdrawal of a plea forming the basis of a conviction
STATe v. kUhL 	135
Cite as 16 Neb. App. 127

is addressed to the discretion of the trial court, and its ruling
will not be disturbed on appeal absent an abuse of that dis-
cretion. State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002).
See, also, Goemann v. State, 94 Neb. 582, 143 N.W. 800 (1913)
(holding that refusal to permit defendant charged with gambling
to withdraw plea of not guilty to object to variance between
information and original complaint and file plea in abatement
was not abuse of discretion); Ingraham v. State, 82 Neb. 553,
118 N.W. 320 (1908) (request for leave to withdraw plea of not
guilty and file plea in abatement is addressed to sound discre-
tion of trial court, and reviewing court will not disturb ruling
thereon unless record clearly shows abuse of discretion).
kuhl did not cite to any authority in support of his argu-
ment that the ordinance or statute in question is constitutionally
infirm. The district court found that the county court’s decision
not to allow kuhl to withdraw his not guilty plea and thereafter
attack the constitutionality of the ordinance or its underlying
statute was clearly within the discretion of the county court. We
agree, and we find no abuse of discretion in the county court’s
refusal to allow kuhl’s withdrawal of his previously entered
pleas of not guilty.
Rulings at November 17, 2005, Hearing.
kuhl asserts that the county court erred in failing to allow
kuhl to call an expert witness at the November 17, 2005, hear-
ing and not allowing two technical documentation exhibits into
evidence at that hearing; however, as noted by the district court,
contrary to kuhl’s assertions, those exhibits were received into
evidence by the county court at the November 17 hearing.
At the November 17, 2005, hearing, kuhl sought to present
expert testimony as to “the importance of the source code in the
proper defense of [kuhl].” Brief for appellant at 9. The court
initially asked kuhl’s attorney for a basic description of the
source code. The court then stated, “I don’t know that I need
your expert to elaborate or provide me with a more technical
description of what you’ve referred to as the source code. If
the State doesn’t have it, I’m not going to order them [sic] to
produce it.” After hearing argument from the parties, the court
inquired, “Is [kuhl’s expert] going to be able to help me resolve
136 	16 NeBRASkA APPeLLATe RePORTS

whether the State has these things or not?” kuhl’s attorney indi-
cated that his expert would not be able to help the court make
such a determination, and the court again declined to hear tes-
timony from kuhl’s expert, “because it’s not relevant.” kuhl’s
attorney then asked to make an offer of proof and sought to
have his expert testify during the course of the offer of proof.
The county court allowed kuhl to make an offer of proof by
“paraphras[ing] what the expert would say,” which kuhl’s coun-
sel did. The court also received the two technical documentation
exhibits for purposes of kuhl’s offer of proof. Those exhibits
are documents concerning the source code and the accuracy of
a particular type of breath testing machine.
[13] The district court determined that the county court’s
refusal to allow kuhl’s expert to testify as to “the science of
the source code” during pretrial proceedings was not an abuse
of discretion given the county court’s determination that the
State did not have a legal obligation to produce evidence not
in its possession. The admission of expert testimony is ordinar-
ily within the discretion of the trial court, and its ruling will be
upheld in the absence of an abuse of discretion. State v. Duncan,
265 Neb. 406, 657 N.W.2d 620 (2003). The county court deter-
mined that testimony from kuhl’s expert was not relevant to a
determination of whether the State should be required to turn
over the source code.
[14,15] evidence is relevant when it has any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence. State v. Iromuanya, 272
Neb. 178, 719 N.W.2d 263 (2006), cert. denied 549 U.S. 1167,
127 S. Ct. 1129, 166 L. ed. 2d 893 (2007); Neb. Rev. Stat.
§ 27-401 (Reissue 1995). The exercise of judicial discretion
is implicit in determinations of relevancy under § 27-401 and
prejudice under Neb. Rev. Stat. § 27-403 (Reissue 1995), and
a trial court’s decision under these evidentiary rules will not be
reversed absent an abuse of discretion. State v. Davlin, 272 Neb.
139, 719 N.W.2d 243 (2006).
The record shows that the testimony of kuhl’s expert was not
relevant to the questions before the county court, those being
whether the State had access to the source code for the machine
STATe v. kUhL 	137
Cite as 16 Neb. App. 127

used to test kuhl’s breath and whether the State should be
required to turn over the source code. We have already affirmed
the district court’s upholding of the county court’s rulings on
the discoverability of the source code. Accordingly, we find no
abuse of discretion in the county court’s refusal to allow kuhl’s
expert to testify further about the source code.
Trial Exhibit 10.
kuhl asserts that the county court erred in incorrectly apply-
ing exhibit 10 at the time of trial. The record does not include
a copy of exhibit 10, but it was identified at trial as being a
copy of the scheduled maintenance and calibration log for the
DataMaster machine at issue from January 21 through March
2, 2005. Brady, a senior crime laboratory technician, testified
that exhibit 10 was part of the maintenance and calibration that
is necessary to ensure that the DataMaster machine is working
properly. kuhl’s counsel questioned Brady extensively about
the values shown on exhibit 10 and then offered exhibit 10
into evidence. The State observed that the maintenance checks
reflected on exhibit 10 were “[v]alid until [the] 2nd of March,
’05,” and had an expiration date of May 8, prior to when the
test of kuhl’s breath was given. The State then objected as to
the relevance of exhibit 10. The court stated that it was not
sure whether exhibit 10 showed a problem with the machine,
“because neither [the prosecutor nor kuhl’s counsel had] asked
the ultimate question of [Brady],” and sustained the objection
until the actual relevance was determined. Upon redirect exami-
nation, Brady was questioned further about the data shown on
exhibit 10. Brady reaffirmed his earlier testimony that on May
12, the DataMaster machine in question was working properly
and was in compliance with administrative regulations.
kuhl argues that exhibit 10 contained evidence that the
DataMaster machine was operating outside the acceptable mar-
gin of error and asserts that accordingly, the foundation for the
test results of kuhl’s breath was not met on the part of the State,
making the test of kuhl’s breath inadmissible. The maintenance
checks reflected in exhibit 10 were no longer valid as of the date
when kuhl’s breath was tested, and a review of Brady’s testi-
mony makes it clear that the machine was working properly on
138 	16 NeBRASkA APPeLLATe RePORTS

the date in question. Brady testified without objection that the
machine was operating properly on May 12, 2005. Additionally,
a maintenance and calibration log for April 24 that was valid
until June 4 and a report from a 190-day check of the machine
performed on April 24 for the period from April 24 to November
14 were both received into evidence without objection. That
log and report show that the machine was operating within the
target values and acceptable ranges for the breath test simula-
tor solutions tested. We observe that Osier, a crime laboratory
technician, testified without objection that the result of kuhl’s
breath test was .100 of a gram of alcohol per 210 liters of breath.
Further, kuhl’s breath test result document was admitted into
evidence without objection. As did the district court, we deter-
mine that the county court was not clearly wrong in excluding
exhibit 10 from evidence.
Testimony of Vasiliades.
kuhl asserts that the county court erred in misapplying and
misinterpreting the testimony of Vasiliades. kuhl also asserts
that the county court erred in not applying Vasiliades’ unrebutted
testimony regarding the margin of error of .030 grams per 210
liters of breath to the present case. kuhl observed that the State
did not offer any expert testimony and that most of Vasiliades’
testimony was unrebutted. kuhl argues that although Vasiliades’
testimony was the only factual evidence on issues such as the
reliability of the DataMaster machine, the court still found kuhl
guilty of DUI. kuhl argues further that the court did not give
Vasiliades’ testimony the correct weight and “incorrectly applied
his testimony.” Brief for appellant at 12.
[16,17] Triers of fact are not required to take opinions of
experts as binding upon them. Jones v. Meyer, 256 Neb. 947,
594 N.W.2d 610 (1999). In reviewing a criminal conviction, an
appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence. State v.
Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007). Such matters
are for the finder of fact, and a conviction will be affirmed, in
the absence of prejudicial error, if the properly admitted evi-
dence, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. Id. We decline to reweigh the
STATe v. kUhL 	139
Cite as 16 Neb. App. 127

testimony of Vasiliades. Concerning Vasiliades’ testimony, the
district court observed that the county court was the trier of fact
and was “permitted to give the weight to [Vasiliades’] testimony
that it found appropriate to do.” The district court found kuhl’s
assignment of error regarding the county court’s application and
interpretation of Vasiliades’ testimony to be without merit. The
district court also found kuhl’s assertion that the county court
erred in “not applying the unrebutted margin of error of .03
to the test in question” to be without merit. As did the district
court, we find no error in the county court’s determinations as
to the credibility and weight of Vasiliades’ testimony.
[18,19] kuhl notes the lapse in time between when kuhl
was stopped and when the breath test was administered. kuhl
refers to concerns raised in Vasiliades’ testimony about whether
a defendant’s breath alcohol content at the time of testing accu-
rately reflects the content at the time that defendant was driving
a motor vehicle. however, Nebraska law provides that matters of
delay between driving and testing go to the weight of the breath
test results, rather than to the admissibility of the evidence.
State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990). A valid
breath test given within a reasonable time after the accused was
stopped is probative of a violation of the DUI statute. Id. There
is nothing in the record to suggest that kuhl’s breath test was not
given within a reasonable time after kuhl was stopped. kuhl’s
assignments of error relating to this issue are without merit.
Use of Ignition Interlock Device.
[20,21] kuhl asserts that the county court erred in refus-
ing to grant the use of an ignition interlock device as a con-
dition of probation. Neb. Rev. Stat. § 60-6,211.05(1) (Supp.
2003) provides:
If an order of probation is granted . . . the court may order
the defendant to install an ignition interlock device of a
type approved by the Director of Motor Vehicles on each
motor vehicle operated by the defendant. . . . The device
shall, without tampering or the intervention of another
person, prevent the defendant from operating the motor
vehicle when the defendant has an alcohol concentration
greater than the levels prescribed in section 60-6,196.
140 	16 NeBRASkA APPeLLATe RePORTS

At the sentencing hearing, the court responded as follows to
the request of kuhl’s attorney to consider the use of an inter-
lock device:
With all d[ue] respect, I have not in my career yet, allowed
anyone ignition interlock. I do not intend to. One of the
most consequential penalties that I can impose is the loss
of driving privileges. And that’s — That’s the one that I
think is going to affect everybody. People with a fat wal-
let can always pay a $400 fine, so I’ve never looked at a
fine in a DUI case as necessarily a severe penalty. But not
being able to drive, if that doesn’t get it through to people
that they shouldn’t drink and drive, I don’t know what
will. So I — That’s a meaningful penalty, and I have not
yet imposed the ignition interlock, nor do I intend to in the
— until I retire, so [the] request is denied.
When a court sentences a defendant to probation, it may impose
any conditions of probation that are authorized by statute. State
v. Lobato, 259 Neb. 579, 611 N.W.2d 101 (2000). The sentenc-
ing court may impose such reasonable conditions of probation
as it deems necessary or likely to ensure that the offender will
lead a law-abiding life. Id.
kuhl argues that the loss of driving privileges, a fine, and
the “great expense of hiring an attorney to fight this matter”
have been a great enough penalty. Brief for appellant at 13.
Clearly the county court disagreed and did not find the use
of an ignition interlock device to be a condition necessary or
likely to ensure that kuhl would lead a law-abiding life. As did
the district court, we find nothing in the record to suggest that
the county court abused its discretion in rejecting the use of
this device.
CONCLUSION
The county court did not abuse its discretion in not requiring
the State to turn over the source code, refusing to allow kuhl
to withdraw his not guilty pleas, not allowing kuhl to call an
expert witness at the November 17, 2005, hearing, or reject-
ing the use of an ignition interlock device. Contrary to kuhl’s
assertions, the two technical documentation exhibits he claims
were excluded were received into evidence by the county court
STATe v. kUhL 	141
Cite as 16 Neb. App. 127

at the November 17 hearing. The county court did not err in
excluding exhibit 10 from evidence at trial or in its interpreta-
tion and application of Vasiliades’ testimony.
The county court’s decisions conform to the law, are supported
by competent evidence, and are neither arbitrary, capricious, nor
unreasonable. The district court did not err in affirming kuhl’s
“judgment of conviction and sentence.”
A ffirmed .
timothy t., Appellee , v . shireen t., AppellAnt .
741 N.W.2d 452
Filed November 6, 2007. 	No. A-07-106.
1. Parental Rights: Evidence: Proof: Words and Phrases. In cases of termina-
tion of parental rights under Neb. Rev. Stat. § 42-364(7) (Cum. Supp. 2006), the
standard of proof must be by clear and convincing evidence. Clear and convincing
evidence is that amount of evidence which produces in the trier of fact a firm
belief or conviction about the existence of a fact to be proved.
2. Parental Rights: Appeal and Error. In reviewing a termination of parental rights
case held in district court, an appellate court reviews the record de novo to deter-
mine whether the district court abused its discretion.
3. Parental Rights. Although termination of parental rights cannot be based solely
on the fact that a parent has been incarcerated, courts may consider the attendant
circumstances which are occasioned by incarceration, and when the aggregate of
the circumstances indicates clearly and convincingly that the children’s best inter-
ests dictate termination of parental rights, such is proper.
4. Parental Rights: Appeal and Error. With regard to cases involving termination
of parental rights, when a parent whose parental rights are at issue has been incar-
cerated, an appellate court will consider the nature of the crime committed, as well
as the person against whom the criminal act was perpetrated.
5. Parental Rights: Abandonment: Intent: Words and Phrases. Parental aban-
donment has been described as a parent’s intentionally withholding from a child,
without just cause or excuse, the parent’s presence, care, love, protection, mainte-
nance, and opportunity for the display of parental affection for the child.
6. Abandonment: Intent. The question of abandonment is largely one of intent, to
be determined in each case from all of the facts and circumstances.
7. Modification of Decree. In a domestic relations case, if a material change
in circumstances has occurred, a former decree may be modified in light of
those circumstances.
Appeal from the District Court for hamilton County: michAel
oWens, Judge. Affirmed.
142 	16 NeBRASkA APPeLLATe RePORTS