State v. Scheffert

State of NebraSka , appellee , v.
D erek Scheffert, appellaNt.
778 N.W.2d 733
Filed February 26, 2010. 	No. S-09-458.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
3. Constitutional Law: Search and Seizure: Arrests: Probable Cause. The Fourth
Amendment mandates that an arrest be justified by probable cause to believe that
a person has committed or is committing a crime.
4. Drunk Driving: Blood, Breath, and Urine Tests: Police Officers and Sheriffs.
To “observe,” under the rule regarding observation prior to giving a preliminary
breath test, does not require a police officer to stare fixedly at the person being
tested. The officer must, however, be in a position to detect, through the use of
one or more senses, any conduct or event which could contaminate the breath
sample and taint the results.
5. Blood, Breath, and Urine Tests: Evidence: Probable Cause. A preliminary
breath test is admissible for the limited purpose of establishing probable cause.
6. Constitutional Law: Sentences: Prior Convictions: Drunk Driving. Neb. Rev.
Stat. § 60-6,197.02(3) (Cum. Supp. 2008) permits a defendant to challenge the
validity of a prior conviction for driving under the influence offered for purposes
of enhancement on the ground that it was obtained in violation of the defendant’s
Sixth Amendment right to counsel.
7. Constitutional Law: Criminal Law: Right to Counsel. A criminal defendant’s
Sixth Amendment right to the assistance of counsel attaches only after the initia-
tion of adversary judicial criminal proceedings—whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment. Postattachment, the
accused is entitled to counsel at every critical stage of the proceeding.
Appeal from the District Court for Lancaster County: SteveN
D. burNS, Judge. Affirmed.
Mark E. Rappl for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
STATE v. SChEFFERT 	479
Cite as 279 Neb. 479
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

heavicaN, 	c.J., 	Wright, 	coNNolly, 	gerrarD, 	StephaN,
MccorMack, and M iller-lerMaN, JJ.
M iller-lerMaN, J.
NATURE OF CASE
Derek Scheffert appeals his conviction for driving under
the influence (DUI), fourth offense. Scheffert asserts that the
district court for Lancaster County erred by overruling his
motion to suppress evidence obtained as a result of his arrest
for DUI and his submission to a chemical breath test. he also
asserts that the court erred by relying on two of his prior DUI
convictions at the enhancement hearing. We affirm Scheffert’s
conviction and sentence for DUI, fourth offense.
STATEMENT OF FACTS
At approximately 3 a.m. on March 21, 2008, Officer Robert
Brenner stopped a vehicle driven by Scheffert because Brenner
saw that the passenger-side headlight on Scheffert’s vehicle
was not operating. After obtaining Scheffert’s driver’s license
and other information, Brenner ran a check of Scheffert’s
license and learned that there was an outstanding warrant
for Scheffert’s arrest. Brenner returned to Scheffert’s vehicle,
asked Scheffert to step out of the vehicle, and arrested him
based on the warrant.
Brenner asked Scheffert whether Scheffert’s female passen-
ger would be able to drive Scheffert’s vehicle from the scene.
Scheffert responded that she would not, because she had been
drinking. Brenner noticed an odor of alcohol on Scheffert’s
breath and asked whether he also had been drinking. Scheffert
told Brenner that he had had two beers. Brenner saw that
Scheffert’s eyes were “glassy, watery, and bloodshot.”
Brenner handcuffed Scheffert and escorted him to the back
seat of Brenner’s cruiser. Brenner determined that he should
give Scheffert a preliminary breath test (PBT), but Brenner
did not have a PBT unit in his cruiser. Brenner checked with
another officer who was coming to the scene to verify that the
other officer had a PBT unit with him. The other officer arrived
with a PBT unit, and Brenner administered the PBT. The PBT
showed a result of .147.
480 	279 NEBRASkA REPORTS

Based on the PBT result and his other observations, Brenner
asked Scheffert to submit to a chemical breath test. Brenner
read Scheffert a postarrest chemical test advisement form
which informed him that, inter alia, he was “under arrest
for operating or being in actual physical control of a motor
vehicle while under the influence of alcoholic liquor or drugs.”
Brenner took Scheffert to jail, where Scheffert submitted to
a chemical breath test which showed that Scheffert had .149
grams of alcohol per 210 liters of breath, which was above the
legal limit.
After Scheffert was charged in the district court with fourth-
offense DUI, he filed a motion to suppress all evidence gath-
ered as the result of his seizure and arrest. Scheffert asserted
that Brenner did not have probable cause to require him to
submit to a chemical breath test because the administration of
the PBT was not sufficiently reliable for the results to support
a finding of probable cause. he argued that the PBT was not
reliable because Brenner did not follow regulations that require
the person administering a PBT to observe the person being
tested for 15 minutes prior to giving the test.
At the hearing on the motion to suppress, Brenner testified,
in addition to the facts set forth above, that he observed the
required 15-minute waiting period prior to administering the
PBT. According to the PBT checklist completed by Brenner,
his observation began at 2:50 a.m. and the breath sample was
taken at 3:09 a.m. On cross-examination, Brenner testified that
his sole reason for stopping Scheffert’s vehicle was that the
passenger headlight was not operating, that Brenner had fol-
lowed the vehicle for five blocks but had not observed any poor
driving behavior, and that Scheffert responded in a reasonable
fashion after Brenner activated his cruiser’s overhead lights and
initiated the stop. Upon contact with Scheffert, Brenner did not
initially notice an odor of alcohol or other indicators of alcohol
impairment, such as fumbling or problems with manual dex-
terity or walking.
Brenner testified that the 15-minute waiting period listed on
the checklist began when he returned to Scheffert’s vehicle and
arrested him on the warrant. After arresting Scheffert, Brenner
handcuffed him and put him into the back seat of the cruiser,
STATE v. SChEFFERT 	481
Cite as 279 Neb. 479

where Scheffert remained until the PBT was given. Brenner
testified that during the time Scheffert was in the back seat
prior to the test, Brenner spent some time in the front seat of
the cruiser completing a citation, and that he spent a couple
of minutes standing outside the cruiser waiting for the other
officer to arrive with the PBT unit and talking with the other
officer when he arrived. Brenner testified that while he was in
the front seat, he could see Scheffert in the rearview mirror.
While Brenner was outside the vehicle, the door and window
were closed, and he could see Scheffert but could not necessar-
ily hear him. Brenner testified that there were times that he was
not “staring” at Scheffert but that he never turned his back to
him when he was outside the vehicle.
The district court overruled the motion to suppress. The
court noted first that there was no issue whether there was
probable cause to arrest Scheffert based on the warrant. The
only issues were whether the PBT was sufficiently reliable
and whether there was adequate cause for Brenner to require
Scheffert to submit to the chemical breath test.
According to the district court, the salient facts were not dis-
puted, and the court concluded that Brenner had not observed
Scheffert “as the rules require.” The court stated that although
the PBT results were inadmissible as evidence at trial, it “does
not necessarily preclude use of the information produced by
the test in reaching a conclusion regarding probable cause.”
The court also stated that even if Brenner could not consider
the PBT results in determining probable cause to require the
chemical breath test, “there was sufficient probable cause to
require the test based on other information.” The court noted
that Brenner “observed Scheffert to have the odor of alcohol
about him and to have watery, bloodshot, glassy eyes.” The
court concluded that these factors alone established sufficient
probable cause to require the chemical breath test.
The case was tried to the court on stipulated evidence.
Scheffert renewed his objection to the overruling of the motion
to suppress. Based on the submitted evidence, the court found
Scheffert guilty of DUI.
An enhancement hearing was conducted. The record from
the hearing shows that Scheffert had three prior convictions
482 	279 NEBRASkA REPORTS

for DUI. Scheffert objected to the court’s using two of the
prior convictions. he asserted that the records of these two
convictions failed to demonstrate that he was represented by
counsel at all critical stages of the proceedings. he noted that
the records for these two convictions showed that he appeared
pro se at the arraignments and that he did not have either hired
or appointed counsel until after the arraignments. he further
noted that the records did not show that he waived counsel at
the arraignments. he argued that an arraignment is a critical
stage and that therefore, the State was required to show that he
either had or waived counsel at that time.
The court overruled Scheffert’s objection to its consideration
of his prior convictions and found that Scheffert’s DUI con-
viction was a fourth offense. The court sentenced Scheffert to
intensive supervision probation for 4 years, including a 90-day
jail sentence and a 15-year license revocation.
Scheffert appeals his conviction for fourth-offense DUI.
ASSIGNMENTS OF ERROR
Scheffert asserts that the district court erred by (1) over-
ruling his motion to suppress based on its finding that there
was sufficient probable cause to require him to submit to the
chemical breath test and (2) considering two of his prior DUI
convictions at the enhancement hearing because the record
did not affirmatively show that he had or waived counsel at
the arraignments.
STANDARDS OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. Regarding historical
facts, we review the trial court’s findings for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination. State v. Hedgcock, 277 Neb.
805, 765 N.W.2d 469 (2009).
[2] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision of the court below.
State v. Head, 276 Neb. 354, 754 N.W.2d 612 (2008).
STATE v. SChEFFERT 	483
Cite as 279 Neb. 479

ANALYSIS
The District Court Did Not Err by Overruling the Motion to
Suppress Because Scheffert’s Arrest for DUI Was Supported
by Probable Cause and There Were Reasonable
Grounds to Require a Chemical Test.
Scheffert first asserts that the district court erred by over-
ruling his motion to suppress, thus admitting evidence of the
chemical test. Scheffert does not argue that the stop of his
vehicle was improper, nor does he dispute the district court’s
conclusion that there was probable cause to arrest him based
on the outstanding warrant. he argues only that the court
should have suppressed the results of the chemical breath test
because the PBT results were not sufficiently reliable and
ultimately that Brenner did not have adequate cause to require
him to submit to the chemical breath test. We conclude that
there was probable cause to arrest Scheffert for DUI and that
reasonable grounds existed to require the chemical breath test;
therefore, the court did not err by overruling Scheffert’s motion
to suppress.
With respect to the PBT, we note that Neb. Rev. Stat.
§ 60-6,197.04 (Reissue 2004) provides:
Any peace officer . . . may require any person who
operates or has in his or her actual physical control a
motor vehicle in this state to submit to a preliminary test
of his or her breath for alcohol concentration if the officer
has reasonable grounds to believe that such person has
alcohol in his or her body . . . .
Before Brenner required Scheffert to submit to the PBT,
Brenner noticed an odor of alcohol on Scheffert’s breath and
saw that his eyes were “glassy, watery, and bloodshot,” and
Scheffert had told Brenner that he had had two beers. Upon
observing symptoms or impaired driving, an experienced offi-
cer ordinarily has reasonable grounds to believe that such
person has alcohol in his or her body, see State v. Daly, 278
Neb. 903, 775 N.W.2d 47 (2009), and therefore require such
driver to submit to a PBT. Scheffert does not dispute that
Brenner had “reasonable grounds” to believe that Scheffert
had alcohol in his body and to therefore require him to submit
to the PBT.
484 	279 NEBRASkA REPORTS

With respect to chemical tests, we note that Neb. Rev. Stat.
§ 60-6,197(2) (Reissue 2004) provides:
Any peace officer . . . may require any person arrested
for any offense arising out of acts alleged to have been
committed while the person was driving or was in actual
physical control of a motor vehicle while under the influ-
ence of alcoholic liquor or drugs to submit to a chemi-
cal test or tests of his or her blood, breath, or urine for
the purpose of determining the concentration of alcohol
or the presence of drugs in such blood, breath, or urine
when the officer has reasonable grounds to believe that
such person was driving or was in the actual physical
control of a motor vehicle in this state while under the
influence of alcoholic liquor or drugs in violation of sec-
tion 60-6,196.
The record shows that before requiring Scheffert to submit
to the chemical test, Brenner read to him a postarrest chemi-
cal test advisement which informed him that, inter alia, he was
“under arrest for operating or being in actual physical control
of a motor vehicle while under the influence of alcoholic liquor
or drugs.” Taking the evidence as a whole, it is clear that after
Scheffert was arrested pursuant to the warrant, probable cause
developed, and he was thereafter under arrest for DUI. Because
Scheffert had been arrested for DUI, under § 60-6,197(2),
Brenner could require Scheffert to submit to a chemical test if
Brenner had “reasonable grounds” to believe that Scheffert had
been driving under the influence.
[3] The Fourth Amendment mandates that an arrest be justi-
fied by probable cause to believe that a person has committed
or is committing a crime. State v. Hedgcock, 277 Neb. 805,
765 N.W.2d 469 (2009). Therefore, in order to arrest Scheffert
for DUI, Brenner needed probable cause to believe Scheffert
had committed the crime, and in order to thereafter require
Scheffert to submit to a chemical test under § 60-6,197(2),
Brenner needed reasonable grounds to believe that Scheffert
was driving under the influence. Although Scheffert’s assign-
ment of error as phrased states that there was not probable
cause for a chemical test, his argument is best understood as a
claim that Brenner did not have probable cause to arrest him
STATE v. SChEFFERT 	485
Cite as 279 Neb. 479

for DUI and did not thereafter have reasonable grounds to
require him to submit to a chemical test.
Scheffert argues that the PBT was not reliable and therefore
should not have been considered as support for a finding of
probable cause to arrest him for DUI. he asserts that without
consideration of the PBT results, such probable cause was lack-
ing. As support for these claims, Scheffert asserts that Brenner
was not in a position to observe him for the entire 15-minute
waiting period as required under the rules noted below and that
therefore, the PBT was not reliable.
Under Neb. Rev. Stat. § 60-6,201(3) (Cum. Supp. 2008),
in order to be considered valid, tests made under § 60-6,197
to determine if a party has been driving under the influence
must be performed according to methods approved by the
Department of health and human Services (DhhS). At issue
in this case is the PBT given under § 60-6,197.04. Prior to
2004, the substance of § 60-6,197.04 regarding PBT’s was
codified as part of § 60-6,197. Scheffert notes in this regard
that, consistent with these statutes, 177 Neb. Admin. Code,
ch. 1, § 012.03 (2004), adopted by the DhhS, approved a
checklist for the use of PBT devices. The first step on the
checklist states in part: “Observe the subject for 15 minutes
prior to testing.”
The checklist completed by Brenner in this case shows that
he checked the step requiring observation for 15 minutes and
wrote that the observation began at “0250” and that the sample
was taken at “0309.” Scheffert asserts that because Brenner did
not have Scheffert directly in his sight at all times during the
15-minute observation period, Brenner failed to observe him
for the requisite time under the DhhS rules. In support of his
argument, Scheffert notes that Brenner stated that at times dur-
ing the 15-minute period, he was standing outside the cruiser
or was sitting in the front seat of the cruiser while Scheffert
was sitting in the back seat.
Although the facts and hence the outcome were different
from the present case, the Nebraska Court of Appeals consid-
ered an argument involving the 15-minute requirement in State
v. Cash, 3 Neb. App. 319, 526 N.W.2d 447 (1995). In Cash,
the Court of Appeals noted that the evidence therein showed
486 	279 NEBRASkA REPORTS

that the officer “left [the defendant] alone in the patrol car
and went to [the defendant’s] car to conduct a search.” 3 Neb.
App. at 324, 526 N.W.2d at 451. The State in Cash conceded
that the officer did not observe the defendant as required, and
therefore the Court of Appeals concluded that the PBT was
not administered in accordance with methods approved by
the DhhS.
In reaching its conclusion, the Court of Appeals noted that
the word “observe” was not defined in the relevant statutes
and guidelines, nor had it been interpreted in Nebraska case
law in connection with such statutes and guidelines. The Court
of Appeals looked to other jurisdictions that had interpreted
the word “observe” in connection with similar drunk driv-
ing statutes.
The Court of Appeals stated:
Other jurisdictions have come to the . . . conclusion that
when an officer is required to observe a person before
administering a test, the officer need not stare fixedly at
the person being tested for the specified period of time
in order to satisfy the observation requirement, but must
remain in the person’s presence and be aware of the
person’s conduct.
Cash, 3 Neb. App. at 324, 526 N.W.2d at 451.
[4] We agree with the analysis of the Court of Appeals
in Cash. To “observe,” under the rule regarding observation
prior to giving a PBT, does not require a police officer to
stare fixedly at the person being tested. The officer must,
however, be in a position to detect, through the use of one
or more senses, any conduct or event which could contami-
nate the breath sample and taint the results. See, Bennett v.
State, Dept. of Transp., 147 Idaho 141, 206 P.3d 505 (Idaho
App. 2009); State v. Filson, 409 N.J. Super. 246, 976 A.2d
460 (2009).
With these standards in mind, we note that this case was
not a situation like Cash, supra, in which the officer left the
suspect in the patrol car and went elsewhere to search the
suspect’s car. As the record shows and the district court found,
Brenner did not continuously have his eyes on Scheffert; how-
ever, Brenner did not leave Scheffert’s presence during the
STATE v. SChEFFERT 	487
Cite as 279 Neb. 479

15-minute period. Brenner was either inside or just outside
the vehicle in which Scheffert was seated. Although Brenner
was not constantly watching Scheffert, Brenner remained close
enough to sense an event which might have occurred that could
taint the results of the PBT.
Brenner testified that when he was outside the cruiser,
although the doors and windows were closed, he did not turn
his back on Scheffert and was therefore able to see Scheffert.
Further, when Brenner was sitting in the front seat of the
cruiser and Scheffert was in the back seat, Brenner testified
that he was able to see Scheffert in the rearview mirror. We
note that Scheffert makes no assertion that any event occurred
that would have tainted the test results, and we further note
that during the entire observation period, Scheffert was hand-
cuffed, which would have limited his ability to do something
that would have tainted the results of the PBT. Given the fore-
going facts, we disagree with the district court’s conclusion
that Brenner did not observe Scheffert “as the rules require.”
Consequently, we reject Scheffert’s argument that the PBT
results were not sufficiently reliable to be considered in deter-
mining whether Brenner had probable cause to arrest Scheffert
for DUI.
[5] Nebraska case law has long held that a PBT is admissi-
ble for the limited purpose of establishing probable cause. See,
State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000); State v.
Klingelhoefer, 222 Neb. 219, 382 N.W.2d 366 (1986); State v.
Green, 217 Neb. 70, 348 N.W.2d 429 (1984). The results of the
PBT showed Scheffert’s blood alcohol level to be .147, which
is above the legal limit. Such results, combined with Brenner’s
smelling an odor of alcohol, seeing the condition of Scheffert’s
eyes, and Scheffert’s admission to drinking, supported a find-
ing of probable cause to arrest Scheffert for DUI. Such infor-
mation also provided reasonable grounds to require Scheffert to
submit to a chemical breath test after he had been arrested for
DUI. See § 60-6,197(2). Although our reasoning differs from
that of the district court, we conclude that the district court did
not err by overruling Scheffert’s motion to suppress evidence
obtained as the result of his arrest for DUI and his submission
to the chemical test.
488 	279 NEBRASkA REPORTS

Records of Scheffert’s Prior Convictions Showed That Such
Convictions Were Obtained In Compliance With His Right
to Counsel, and Therefore Such Convictions Could
Be Considered at His Enhancement Hearing.
Scheffert next asserts that the court erred by overruling his
objection to consideration of two of his prior DUI convic-
tions at the enhancement hearing. he argues that with regard
to each of the two prior convictions, the record did not dem-
onstrate that he was represented by counsel or had waived
counsel at the arraignment, which he asserts is a critical stage
of the proceedings. We conclude that although the right to
counsel attached at the arraignment, counsel was not required
at the arraignment itself, and that therefore, the court did
not err by using the fact of the prior convictions to enhance
Scheffert’s sentence.
[6] Under Neb. Rev. Stat. § 60-6,197.02 (Cum. Supp. 2008),
a court is required, as part of the judgment of conviction in a
DUI case, to make a finding on the record as to the convicted
person’s prior DUI convictions as defined in § 60-6,197.02(1).
Pursuant to § 60-6,197.02(3), “[t]he convicted person shall be
given the opportunity to review the record of his or her prior
convictions, bring mitigating facts to the attention of the court
prior to sentencing, and make objections on the record regard-
ing the validity of such prior convictions.” We have construed
the language of this section, then codified at Neb. Rev. Stat.
§ 60-6,196(3) (Supp. 2003) and previously codified at Neb.
Rev. Stat. § 39-669.07 (Reissue 1988), as permitting within
limits a challenge based upon denial of the Sixth Amendment
right to counsel. See State v. Louthan, 257 Neb. 174, 595
N.W.2d 917 (1999). In the context of a DUI case, we have
observed that the statute “permits a defendant to challenge
the validity of a prior DUI conviction offered for purposes of
enhancement on the ground that it was obtained in violation
of the defendant’s Sixth Amendment right to counsel.” Id. at
188, 595 N.W.2d at 926. Similarly, in connection with habitual
criminal proceedings, we have stated that in order to use a prior
conviction, the State must prove, inter alia, that “at the time
of the prior conviction and sentencing, the defendant was rep-
resented by counsel or had knowingly and voluntarily waived
STATE v. SChEFFERT 	489
Cite as 279 Neb. 479

representation for those proceedings.” State v. Robinson, 272
Neb. 582, 633, 724 N.W.2d 35, 77 (2006).
In the present case, the records for the two prior convictions
challenged by Scheffert showed that he was represented by
counsel when he entered pleas of guilty and when he was given
sentences that included time in jail. We acknowledge that the
records do not show that Scheffert was represented by counsel
at his arraignments in those cases.
[7] 	We 	have 	stated 	that 	a 	criminal 	defendant’s 	Sixth
Amendment right to the assistance of counsel attaches only
after the initiation of adversary judicial criminal proceed-
ings—whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment. See State v. Lotter,
255 Neb. 456, 586 N.W.2d 591 (1998). Postattachment, the
accused is entitled to counsel at every critical stage of the
proceeding. See id. The records from the two prior convictions
in this case showed that Scheffert was represented by counsel
at the critical stages that followed his arraignment—the plea
hearing and the sentencing. The issue raised by Scheffert is
whether he had the right to be represented by counsel at the
arraignment itself.
As noted above, the right to the assistance of counsel attaches
after arraignment. The U.S. Supreme Court recently reaffirmed
in Rothgery v. Gillespie County, 554 U.S. 191, 213, 128 S. Ct.
2578, 171 L. Ed. 2d 366 (2008), that “a criminal defendant’s
initial appearance before a judicial officer, where he learns
the charge against him and his liberty is subject to restriction,
marks the start of adversary judicial proceedings that trigger
attachment of the Sixth Amendment right to counsel.” The
Court stated in Rothgery that “[a]ttachment occurs when the
government has used the judicial machinery to signal a com-
mitment to prosecute” and that “[o]nce attachment occurs, the
accused at least is entitled to the presence of appointed counsel
during any ‘critical stage’ of the postattachment proceedings.”
554 U.S. at 211, 212. The Court continued, “Thus, counsel
must be appointed within a reasonable time after attachment
to allow for adequate representation at any critical stage before
trial, as well as at trial itself.” 554 U.S. at 212.
490 	279 NEBRASkA REPORTS

Under Rothgery, the right to counsel attaches at an event
such as an arraignment, and “attachment” means that the
defendant must in a reasonable time thereafter have counsel or
waive counsel at subsequent critical stages. We have also so
held. Lotter, supra. The arraignment itself is not necessarily a
critical stage requiring counsel.
In the present case, the records of the two prior convictions
show that in the critical stages following the arraignments—the
plea hearings and the sentencing hearings—Scheffert was rep-
resented by counsel. Scheffert has not directed us to a par-
ticular reason that the arraignments in his two prior DUI cases
under consideration should be excepted from the jurisprudence
discussed above or that any rights were not protected by hav-
ing counsel present at the subsequent critical stages. It was not
required that Scheffert have counsel at the arraignments in the
prior convictions, and the records show that he was represented
by counsel at the critical stages that followed the arraignments.
We therefore conclude that the record in this case showed the
two prior convictions were counseled as required and that
therefore, the two prior DUI convictions were eligible to be
used to enhance the penalty in the current case. The court did
not err by considering the two prior convictions at the enhance-
ment hearing.
CONCLUSION
We conclude that the PBT was sufficiently reliable to be
used to support a finding of probable cause to arrest Scheffert
for DUI and that there were reasonable grounds to thereafter
require a chemical test. We therefore conclude that the district
court did not err by denying Scheffert’s motion to suppress
the results of the chemical test. We further conclude that the
record relating to the two prior DUI convictions showed that
such convictions were counseled as required and that there-
fore, the court did not err by considering such convictions at
the enhancement hearing. We affirm Scheffert’s conviction and
sentence for DUI, fourth offense.
affirMeD.
STATE v. SChEFFERT 	491
Cite as 279 Neb. 479