State v. Kuhl

as presented by the record and reaches its own independent con-
clusions with respect to the matters at issue. In re Trust Created
by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007). This court tries
factual questions de novo on the record and does not consider
any impermissible or improper evidence. See Gomez v. Savage,
254 Neb. 836, 580 N.W.2d 523 (1998). Our de novo review
of the record does not reveal that the district court abused its
discretion in the admission of evidence in contravention to the
pretrial order.
[13] Jayco also claims the district court erred in failing to
grant judgment to it under § 87-303.01(1), which provides that
an “unconscionable act or practice by a supplier in connection
with a consumer transaction” is a violation of the UDTPA.
Jayco argues that the CCF contracts were not unconscionable.
However, the district court made no findings of fact or conclu-
sions of law as to the unconscionability of the actions of CCF
or Jayco. An appellate court will not consider an issue on appeal
that was not presented to or passed upon by the trial court.
Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d 155 (2007).
We need not address this alleged error any further.
We find no merit to the remaining assignments of error
asserted by Jayco.
VI. CONCLUSION
The judgment of the district court is affirmed. The cross-
appeal has no merit, and it is dismissed.
A ffirmed .
S tAte of N ebrASkA, Appellee , v .
S tepheN C. kuhl , AppellANt .
755 N.W.2d 389
Filed September 5, 2008. 	No. S-06-1393.
1. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, an
appellate court will not set aside a guilty verdict in a criminal case where such
verdict is supported by relevant evidence. Only where evidence lacks sufficient
probative force as a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt.
STATe v. KUHL 	497
Cite as 276 Neb. 497
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

2. Judgments: Appeal and Error. When deciding questions of law, an appellate
court is obligated to reach conclusions independent of those reached by the
trial court.
3. Pleas: Appeal and Error. Withdrawal of a plea is addressed to the discretion of
the trial court, and its ruling will not be disturbed on appeal absent an abuse of
that discretion.
4. Evidence: Waiver: Appeal and Error. A defendant waives the right on appeal to
assert prejudicial error concerning evidence received without objection.
5. Appeal and Error. Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
6. Constitutional Law: Statutes: Pleas: Waiver. Once a defendant has entered a
plea, 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.
7. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s determination is based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason, and evidence.
8. Drunk Driving: Blood, Breath, and Urine Tests: Evidence: Proof. A driving
under the influence offense can be shown either by evidence of physical impair-
ment and well-known indicia of intoxication or simply by excessive alcohol
content shown through a chemical test.
9. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
10. Drunk Driving: Evidence: Proof. To show a violation for driving under the
influence, the State must prove, beyond a reasonable doubt, that the defendant
was operating or in actual physical control of a motor vehicle either (1) while
under the influence of alcoholic liquor or of any drug, (2) when having a concen-
tration of .08 of 1 gram or more by weight of alcohol per 100 milliliters of his or
her blood, or (3) when having a concentration of .08 of 1 gram or more by weight
of alcohol per 210 liters of his or her breath.
11. Expert Witnesses. A trial court is not bound to accept the conclusion of a par-
ticular expert.
12. ____. The weight and credibility of an expert’s testimony are a question for the
trier of fact.
13. Drunk Driving: Blood, Breath, and Urine Tests: Expert Witnesses: Evidence.
The evidence for being guilty of driving with a breath or blood alcohol content
over the statutory limit is not necessarily insufficient simply because the defend-
ant’s expert testimony as to the margin of error is not specifically rebutted by
expert testimony from the State.
14. Drunk Driving: Blood, Breath, and Urine Tests: Proof. A test made in compli-
ance with the statutory scheme, and its corresponding regulations, is sufficient to
make a prima facie case on the issue of blood alcohol concentration.
498 	276 NebrASKA rePOrTS

15. ____: ____: ____. There are four foundational elements the State must establish
for admissibility of a breath test in a prosecution for driving under the influence:
(1) that the testing device was working properly at the time of the testing, (2)
that the person administering the test was qualified and held a valid permit, (3)
that the test was properly conducted under the methods stated by the Department
of Health and Human Services regulation and Licensure, and (4) that all other
statutes were satisfied.
Petition for further review from the Court of Appeals, iNbody ,
Chief Judge, and CArlSoN and moore, Judges, on appeal
thereto from the District Court for Douglas County, J. pAtriCk
mulleN, Judge, on appeal thereto from the County Court for
Douglas County, S tepheN m. S wArtz, Judge. Judgment of
Court of Appeals 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.
heAviCAN, 	C.J., 	wright, 	C oNNolly, 	gerrArd, 	S tephAN,
mCC ormACk, and miller -lermAN, JJ.
mCC ormACk, J.
NATUre OF CASe
In a bench trial, Stephen C. Kuhl was found guilty of driving
under the influence (DUI) in violation of Omaha Mun. Code,
ch. 36, art. III, § 36-115 (2001). The conviction was based on
the trial court’s finding that Kuhl was operating a motor vehicle
while having a concentration of at least .08 of 1 gram or more
by weight of alcohol per 210 liters of his breath. Kuhl argues
that the trial court should have given him the benefit of the
margin of error for the machine used to test his breath alcohol
content. His expert’s testimony was not rebutted by the State.
He also claims that his right to confront witnesses against him
was violated by the admission of the test results when Kuhl did
not have access to the machine’s source code. We affirm.
bACKGrOUND
On May 12, 2005, at approximately 9:40 p.m., Kuhl was
pulled over for speeding. Officer Steven J. Garcia noticed that
Kuhl had an odor of alcohol emanating from him and that he
STATe v. KUHL 	499
Cite as 276 Neb. 497

had slurred speech. Kuhl admitted to having consumed four
beers over the course of the evening, and Garcia asked Kuhl to
take some field sobriety tests. The details of these tests are not
relevant to this appeal, because the trial court found that there
was insufficient evidence to establish a relationship between
Kuhl’s field sobriety test results and his ability to operate a
motor vehicle. Kuhl was taken to the police station, where he
submitted to an analysis of his breath by a DataMaster 130457
machine at approximately 10:40 p.m. The test yielded a result
of .100 of 1 gram of alcohol per 210 liters of breath.
Kuhl was charged with violation of Omaha Mun. Code
§ 36-115, and, during discovery, Kuhl sought the “source code”
for the DataMaster, which Kuhl explained was the “underlying
computer technology in language that tells the machine to do
what it’s supposed to do.” The parties stipulated that the State
did not have the source code in its possession and that the
manufacturer of the DataMaster would not provide the source
code to the State. The trial court found that the source code
was not within the State’s “possession, custody, or control,” as
would be required to compel discovery under Neb. rev. Stat.
§ 29-1914 (reissue 1995).
At trial, Officer James brady, a senior crime laboratory tech-
nician with the Omaha Police Department, testified about the
maintenance of the DataMaster, the holders of various permits
to both maintain and conduct tests on the DataMaster, and the
documentation relating to maintenance of the machine. Patricia
A. Osier, a crime laboratory technician, testified about the
administration of the test conducted on Kuhl. The test results
were admitted into evidence without objection, and the State
concluded its case in chief.
Dr. John Vasiliades, an expert in the field of forensic toxi-
cology, testified on behalf of Kuhl. Vasiliades explained the
chemical processes by which alcohol is ingested, absorbed, and
eliminated, and he described random increases and decreases
in breath alcohol called “spiking.” He testified further that the
infrared spectrophotometric technique used by the DataMaster
did not always distinguish alcohol from other volatile sub-
stances that might be present for other reasons—for example,
because the subject had been around solvent fumes. Vasiliades
500 	276 NebrASKA rePOrTS

opined that the test was inaccurate because the “partition ratio”
used to extrapolate the subject’s blood alcohol from the breath
sample did not reflect the average of the population. He also felt
that the test did not meet the standards of forensic toxicology
because it took two readings of the same breath sample rather
than two separate breath samples. He opined that, “[f]rom the
forensic point of view, if you can not [sic] show duplication,
the result should not be used for forensic purposes.” Vasiliades
noted studies showing that infrared spectrophotometric breath
alcohol tests might inaccurately read “mouth alcohol” that
could have returned to the oral cavity if the subject burped.
based on his training and experience, Vasiliades stated his
opinion within a reasonable degree of scientific certainty that
the margin of error for the DataMaster was plus or minus .03
grams. In support of this opinion, Vasiliades cited a study
done 15 years earlier on a different version of the DataMaster
machine. In that study, 2,668 individuals had given two con-
secutive breath samples in the DataMaster, and the average cor-
relation between the breath alcohol reading for the two breaths
was “.95.” Vasiliades described this as the “Standard error of
estimate” at “one standard deviations.” but, he explained that
“[f]or forensic purposes you need to multiply that times three,
because we want to be 100 percent certain of the results which
we report. . . . Margin of errors on any . . . analytical technique,
you need to go up three standard deviations.” When questioned
further regarding the study on which his opinion was based,
Vasiliades testified that he was giving the current DataMaster
the “benefit of the doubt, because your data may be worse than
that, I don’t know. Unless you do the study, and actually you
probably should do that study to show that — what your mar-
gin of error is.”
The trial court found Kuhl guilty of DUI based solely on its
finding that Kuhl was operating a motor vehicle while having
a concentration of at least .08 of 1 gram or more by weight
of alcohol per 210 liters of his breath. The trial court and the
Nebraska Court of Appeals affirmed the judgment.1 We granted
Kuhl’s petition for further review.
1 See State v. Kuhl, 16 Neb. App. 127, 741 N.W.2d 701 (2007).
STATe v. KUHL 	501
Cite as 276 Neb. 497

ASSIGNMeNTS OF errOr
Kuhl asserts, consolidated and restated, that the Court of
Appeals should have reversed his conviction because (1) he
was unable to examine the source code for the DataMaster
machine used for the test, (2) the trial court failed to admit
evidence concerning the importance of the DataMaster source
code, (3) the trial court denied Kuhl’s request to withdraw his
plea in order to attack the constitutionality of a statute and
ordinance that allegedly create a “rebuttable presumption” of
guilt once test results are entered into evidence, and (4) the
trial court failed to apply the unrebutted .03 margin of error
testified to by Kuhl’s expert witness.
STANDArD OF reVIeW
[1] On a claim of insufficiency of the evidence, an appellate
court will not set aside a guilty verdict in a criminal case where
such verdict is supported by relevant evidence. Only where evi-
dence lacks sufficient probative force as a matter of law may
an appellate court set aside a guilty verdict as unsupported by
evidence beyond a reasonable doubt.2
[2] When deciding questions of law, this court is obligated
to reach conclusions independent of those reached by the
trial court.3
[3] Withdrawal of a plea is addressed to the discretion of the
trial court, and its ruling will not be disturbed on appeal absent
an abuse of that discretion.4
ANALYSIS
S ourCe C ode
Kuhl’s first argument is that the admission of the breathalyzer
results when Kuhl did not have access to the source code of the
machine violated his right to confrontation under the Sixth
Amendment to the U.S. Constitution. The trial court found
that the source code was not within the State’s “possession,
2 State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994).
3 Id.
4 State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002).
502 	276 NebrASKA rePOrTS

custody, or control,” as would be required to compel discovery
under § 29-1914. Kuhl does not challenge this finding. At trial,
Kuhl did not attempt to serve a subpoena duces tecum on the
DataMaster manufacturer. Still, according to Kuhl, “the State
should be required to make every reasonable attempt to recover
the source code, and, if the patent holder is still uncooperative,
then that is when the court needs to evaluate the importance of
a trade secret as opposed to a fundamental right guaranteed by
our Constitution.”5 He then concludes: “If the State is unwilling
or unable to turn over the source code, the results of the breath
test should be inadmissible . . . .”6
[4] While Kuhl may have made these arguments during the
pretrial discovery hearing, there is nothing in the record to
reflect that Kuhl objected to the admission of the test results
which he now asserts violated his right to confrontation. A
defendant waives the right on appeal to assert prejudicial
error concerning evidence received without objection.7 Thus,
in the absence of plain error, we cannot review Kuhl’s claim
that the admission of the DataMaster results violated his right
to confrontation.8
[5] Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from
the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process.9 We find no
plain error in the admission of the DataMaster test results in
this case.10 Kuhl’s first assignment of error is without merit.
5 brief for appellant in support of petition for further review at 3.
6 Id.
7 See State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
8 See State v. Haltom, 264 Neb. 976, 653 N.W.2d 232 (2002).
9 State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved
on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d
727 (2007).
10 See, e.g., U.S. v. Washington, 498 F.3d 225 (4th Cir. 2007); City of Fargo
v. Levine, 747 N.W.2d 130 (N.D. 2008); State v. Chun, 194 N.J. 54, 943
A.2d 114 (2008); State v. Crager, 116 Ohio St. 3d 369, 879 N.e.2d 745
(2007); Wimbish v. Com., 51 Va. App. 474, 658 S.e.2d 715 (2008).
STATe v. KUHL 	503
Cite as 276 Neb. 497

And having so found, we can find no error in the court’s
refusal to allow Kuhl’s offer of proof of an expert witness to
show the importance of a source code to challenging the breath
test results. Therefore, Kuhl’s second assignment of error is
also without merit.
withdrAwAl of pleA
[6,7] Next, Kuhl argues that the trial court erred in refusing
to allow him to withdraw his plea. Once a defendant has entered
a plea, 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.11
Withdrawal of a plea is addressed to the discretion of the trial
court, and its ruling will not be disturbed on appeal absent an
abuse of that discretion.12 An abuse of discretion occurs when a
trial court’s determination is based upon reasons that are unten-
able or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence.13
At the pretrial hearing, Kuhl argued that he should be
allowed to withdraw his plea as follows:
I think I’m 99% percent [sic] sure you probably won’t let
me do this, I’d like to withdraw my previous entered pleas
of not guilty, and allow me to argue point number 3 in my
motion about the fact that the use of the machine creates
a rebuttable presumption, therefore, it’s unconstitutional,
because I think it invades my client’s Fifth Amendment
rights. Obviously, in the future, from now on, I — before
my client tenders a plea, I will be found [sic] an appro-
priate motion to quash or the demurer [sic]. To attack the
constitutionality, I have in fact, noticed in, the attorney
general’s office as I’m required to do so, whenever I ack-
the cons- — attack the constitutionality with particular
statute. So I make that small pitch.
Kuhl did not present any evidence in support of his motion to
withdraw the plea.
11 State v. Liston, 271 Neb. 468, 712 N.W.2d 264 (2006).
12 State v. Schneider, supra note 4.
13 State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
504 	276 NebrASKA rePOrTS

[8] A DUI offense can be shown either by evidence of
physical impairment and well-known indicia of intoxication or
simply by excessive alcohol content shown through a chemi-
cal test.14 In State v. Kubik,15 we held that there was a rational
relationship between proscribing a particular concentration of
breath alcohol and the purpose of prohibiting people from
driving while under the influence of drugs or alcohol. In addi-
tion, in other cases, we have said that it is a judicial function
to determine whether the breath test evidence is sufficient to
sustain a conviction16 and that submission of the blood alcohol
test results do not create a “presumption of guilt.”17 We find no
abuse of discretion in the trial court’s refusal to allow Kuhl to
withdraw his plea.
mArgiN of error
Finally, Kuhl asserts that under our case law, if the defendant
presents unrebutted evidence at trial as to the margin of error
for the breath test reading, then that defendant must be given
the benefit of that margin of error. In other words, he asserts
that it is clear error for the trial court to find the defendant
guilty of an impermissible breath alcohol content when the
result, calculated with the margin of error established by such
unrebutted testimony, would fall below the legal limit.
[9] While Kuhl failed to make any motions for directed ver-
dict either at the close of the State’s case in chief or at the close
of all the evidence, he may still challenge the sufficiency of
the evidence to sustain his convictions.18 Thus we will address
Kuhl’s argument that the evidence was insufficient to support
his DUI conviction because Vasiliades presented the only evi-
dence as to the DataMaster’s margin of error, which would
have placed Kuhl’s breath test results below the statutory limit
of .08. When reviewing a criminal conviction for sufficiency of
14 See, e.g., State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).
15 State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).
16 State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987).
17 State v. Dush, 214 Neb. 51, 54, 332 N.W.2d 679, 682 (1983).
18 See State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002).
STATe v. KUHL 	505
Cite as 276 Neb. 497

the evidence to sustain the conviction, the relevant question for
an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.19
[10] A DUI violation is a single offense that can be proved
in more than one way.20 The State must prove, beyond a rea-
sonable doubt, that the defendant was operating or in actual
physical control of a motor vehicle either (1) while under the
influence of alcoholic liquor or of any drug, (2) when having
a concentration of .08 of 1 gram or more by weight of alcohol
per 100 milliliters of his or her blood, or (3) when having a
concentration of .08 of 1 gram or more by weight of alcohol
per 210 liters of his or her breath.21
To prove blood or breath alcohol content, Neb. rev. Stat.
§ 60-6,201 (reissue 2004) sets forth that, to be considered
valid, the tests must be performed according to methods
approved by the Department of Health and Human Services
regulation and Licensure and by an individual possessing a
valid permit from that department, a licensed health care pro-
vider, or a certified clinical laboratory. Section 60-6,201(1)
provides that any test,
if made in conformity with the requirements of this sec-
tion, shall be competent evidence in any prosecution
under a state statute or city or village ordinance involving
operating a motor vehicle while under the influence of
alcoholic liquor or drugs or involving driving or being in
actual physical control of a motor vehicle when the con-
centration of alcohol in the blood or breath is in excess of
allowable levels.
In DUI cases where the State’s own experts establish that
the test used to measure the defendant’s alcohol level has an
inherent margin of error that, if applied in the defendant’s
favor, would result in a measurement below the legal limit,
19 Id.
20 State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000).
21 Neb. rev. Stat. § 60-6,196 (reissue 2004).
506 	276 NebrASKA rePOrTS

we have held that the State has failed to meet its burden of
proof for a conviction based solely on test results.22 In State
v. Bjornsen, where the State’s chemist testified that the mar-
gin of error could place the test results below the legal limit,
we rejected the State’s argument that statutes stating that tests
made in conformity therewith “shall be competent evidence”
make any variances inherent in the testing process irrelevant.
We explained:
While the Legislature has the acknowledged right
to prescribe acceptable methods of testing for alcohol
content in body fluids and perhaps even the right to pre-
scribe that such evidence is admissible in a court of law,
it is a judicial determination as to whether this evidence
is sufficient to sustain a conviction, if the evidence is
believed. The Legislature has selected a particular per-
cent of alcohol to be a criminal offense if present in a
person operating a motor vehicle. It is not unreasonable
to require that the test, designed to show that percent, do
so outside of any error or tolerance inherent in the test-
ing process.23
In State v. Adams, where the State’s expert testified that the
margin of error inherent to the blood test conducted could place
the defendant’s levels under the legal limit, we said: “[W]hen
there is a margin of error in a chemical test for alcohol, the test
result must be adjusted and the defendant given the benefit of
the adjusted reading.”24
22 See, State v. Adams, 251 Neb. 461, 558 N.W.2d 298 (1997); State v.
Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978). See, also, State v.
Munoz, 11 Neb. App. 266, 647 N.W.2d 668 (2002).
23 State v. Bjornsen, supra note 22, 201 Neb. at 710-11, 271 N.W.2d at 840.
See, also, State v. Burling, supra note 16; Haynes v. State, Dept. of Public
Safety, 865 P.2d 753 (Alaska 1993); State v. Boehmer, 1 Haw. App. 44,
613 P.2d 916 (1980). Compare, e.g., Wieseler v. Prins, 167 Ariz. 223,
805 P.2d 1044 (Ariz. App. 1990); State v. Rucker, 297 A.2d 400 (Del.
Super. 1972); Nugent v. Iowa Dept. of Transp., 390 N.W.2d 125 (Iowa
1986) (revocation).
24 State v. Adams, supra note 22, 251 Neb. at 467, 558 N.W.2d at 302.
STATe v. KUHL 	507
Cite as 276 Neb. 497

We also applied that principle in State v. Burling.25 At the
time Burling was decided by this court, the DUI statute neces-
sitated the conversion of the chemical analysis of a subject’s
breath to the amount by weight of alcohol in a subject’s
blood.26 The defendant presented expert testimony that the
breath test device used an inaccurate conversion formula and
that giving the defendant the benefit of the actual range of
breath-to-blood distribution ratios in the population would
place his blood alcohol level below the legal limit. The State
failed to present any evidence to controvert this testimony. We
held that because the testimony as to the margin of error was
uncontroverted and because we must adjust the defendant’s test
results so as to give the defendant the benefit of a margin of
error, the evidence was clearly insufficient to establish a pro-
hibited blood alcohol level.27
In contrast, in State v. Hvistendahl,28 the State’s expert and
an expert called by the defendant disputed the inherent margin
of error for the testing device. We explained that “when there is
a conflict in the evidence as to what that margin of error actu-
ally is, we will affirm the decision of the trier of fact so long as
there is sufficient evidence in the record, if believed, to sustain
its finding of guilt.”29
[11,12] In State v. Baue,30 we relied on Hvistendahl and
departed from our conclusion in Burling. We noted that the
trial court is not bound to accept the conclusion of a particular
expert.31 And “[w]hether an adjustment is required is dependent
upon the credible evidence in each case.”32 The weight and
25 State v. Burling, supra note 16.
26 See Neb. rev. Stat. § 39-669.07 (reissue 1984).
27 State v. Burling, supra note 16.
28 State v. Hvistendahl, 225 Neb. 315, 405 N.W.2d 273 (1987).
29 Id. at 318, 405 N.W.2d at 276.
30 State v. Baue, supra note 20.
31 See, id.; State v. Hvistendahl, supra note 28.
32 State v. Babcock, 227 Neb. 649, 653, 419 N.W.2d 527, 530 (1988). See,
also, State v. Hvistendahl, supra note 28; State v. Baue, supra note 20.
508 	276 NebrASKA rePOrTS

credibility of an expert’s testimony are a question for the trier
of fact.33
Applying these principles, in Baue, we held that the trial
court was correct in denying the defendant’s motion in limine
to exclude the defendant’s breath test results from the jury.
Vasiliades testified in Baue as well, and he opined that the
Intoxilyzer Model 4011AS, the device used in that case, had
an inherent analytical error of plus or minus .03. If this margin
had been applied in the defendant’s favor, his test results would
have fallen below the legal limit. The State offered no rebuttal
to Vasiliades’ testimony during the hearing on the motion in
limine. but we explained:
[W]hile Vasiliades’ opinion with respect to the margin
of error was not specifically rebutted during the pretrial
hearing at which he testified, it was not binding upon the
trial court, and [the defendant] was not entitled to have
the test result adjusted downward as a matter of law at
that time.34
We further stated that to the extent Burling was inconsistent
with our holding, it was overruled.
Kuhl points out that in Baue, the testimony at trial, as
opposed to the hearing on the motion in limine, was contro-
verted. Thus, he asserts that our holding in Burling is still
valid and stands for the proposition that the test results must
be adjusted to unrebutted trial testimony as to the margin
of error.
In Baue, we observed that the State presented evidence at
trial to dispute Vasiliades’ opinion as to the margin of error
(the State’s expert testified that the test was accurate to within
5 percent). We then cited Hvistendahl and concluded that
“the trial court did not err in refusing to adjust the test result
as a matter of law and in submitting the issue to the jury
for determination.”35
33 See id.
34 State v. Baue, supra note 20, 258 Neb. at 979, 607 N.W.2d at 201.
35 Id.
STATe v. KUHL 	509
Cite as 276 Neb. 497

[13,14] We recognize that our reference to Hvistendahl and
the facts of Baue may have caused some confusion. To be
clear, we hold that the evidence for being guilty of driving with
a breath or blood alcohol content over the statutory limit is not
necessarily insufficient simply because the defendant’s expert
testimony as to the margin of error is not specifically rebutted
by expert testimony from the State. It is a longstanding prin-
ciple that a test made in compliance with the statutory scheme,
and its corresponding regulations, is sufficient to make a prima
facie case on the issue of blood alcohol concentration.36 That
scheme does not require evidence as to any margin of error for
the testing device. And the trial court is not required to accept
as credible any expert testimony called by the defendant to
rebut the State’s prima facie case.
[15] Currently, § 60-6,201 requires that a chemical test be
performed in accordance with the procedures approved by the
Department of Health and Human Services regulation and
Licensure and by an individual possessing a valid permit issued
by that department for such purpose.37 We have explained that
there are four foundational elements the State must establish
for admissibility of a breath test in a DUI prosecution: (1) that
the testing device was working properly at the time of the test-
ing, (2) that the person administering the test was qualified and
held a valid permit, (3) that the test was properly conducted
under the methods stated by the Department of Health and
Human Services regulation and Licensure, and (4) that all
other statutes were satisfied.38
Kuhl does not argue that this prima facie case was not made
during his trial. While Kuhl attempted to rebut this prima
facie case with Vasiliades’ expert testimony, the trial court
apparently did not find this testimony to be credible. We note
that Vasiliades himself admitted that he knew of no studies that
specifically related to the DataMaster used to test Kuhl and that
36 State v. Kubik, supra note 15. See, also, e.g., State v. Fox, 177 Neb. 238,
128 N.W.2d 576 (1964).
37 See McGuire v. Department of Motor Vehicles, 253 Neb. 92, 568 N.W.2d
471 (1997).
38 See State v. Baue, supra note 20.
510 	276 NebrASKA rePOrTS

such a particularized study would be necessary to accurately
access the machine’s margin of error. We find the evidence suf-
ficient to support the trial court’s determination that Kuhl was
driving while having a concentration of at least .08 of 1 gram
or more by weight of alcohol per 210 liters of his breath.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
Court of Appeals affirming the judgment of the county court.
A ffirmed .
PICK v. NOrFOLK ANeSTHeSIA 	511
Cite as 276 Neb. 511
miChAel g. piCk et Al ., AppelleeS, v .
Norfolk ANeStheSiA, p.C., AppellANt .
755 N.W.2d 382
Filed September 5, 2008. 	No. S-07-264.
1. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly erroneous.
2. ____: ____. In reviewing a judgment awarded in a bench trial of a law action, an
appellate court does not reweigh evidence, but considers the evidence in the light
most favorable to the successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable inference deducible
from the evidence.
3. Judgments: Statutes: Appeal and Error. When an appeal calls for statutory
interpretation or presents questions of law, an appellate court must reach an
independent, correct conclusion irrespective of the determination made by the
court below.
4. Employer and Employee: Employment Contracts: Wages. A payment will be
considered a wage subject to the Nebraska Wage Payment and Collection Act if
(1) it is compensation for labor or services, (2) it was previously agreed to, and
(3) all the conditions stipulated have been met.
5. ____: ____: ____. Absent an express agreement otherwise, an employee ordi-
narily forfeits the right to receive a bonus by resigning before the corresponding
bonus period ends.
Appeal from the District Court for Madison County: pAtriCk
g. rogerS, Judge. reversed.
David r. buntain, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellant.