State v. Rodriguez

provision makes it a discretionary function to determine what is
adequate and sufficient. As noted above, the Nebraska Supreme
Court has recognized that sovereign immunity cases may result
in some claims going unremedied, but the balancing of vari
ous competing needs necessary for traffic control installation
and maintenance is precisely the kind of discretionary function
to which sovereign immunity traditionally applies. We find
no error by the district court in its conclusion that the State
is immune from Appellants’ claims, and we find no merit to
Appellants’ claims to the contrary.
3. P roximate Cause
In light of our conclusion that the district court did not com
mit error in finding that defendants are immune from the claims
brought by Appellants, we need not further address Appellants’
assignment of error that the court erred in finding that the sole
proximate cause of the accident was McDonald’s failure to
observe the oncoming train and take appropriate action.
V. CONCLUSION
The district court committed no error in finding that defend
ants are immune from the claims brought by Appellants. As
such, we affirm.
affirmed.
state of Nebraska , aPPellee , v.
roy rodriguez , aPPellaNt.
774 N.W.2d 775
Filed November 3, 2009. 	No. A 09 314.
1. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
2. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
3. Drunk Driving: Blood, Breath, and Urine Tests: Proof. There are four foun
dational elements the State must establish for admissibility of a breath test in a
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www.nebraska.gov/apps-courts-epub/
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prosecution for driving under the influence: (1) that the testing device was work
ing 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.
4. Evidence: Blood, Breath, and Urine Tests. The failure to perform a blood or
breath test using the methods prescribed by the Department of Health and Human
Services Regulation and Licensure makes the test result inadmissible.
5. Drunk Driving: Evidence: Blood, Breath, and Urine Tests. Deficiencies in
the techniques used to test the blood or breath alcohol level in driving under the
influence cases generally are of no foundational consequence, but affect only the
weight and credibility of the testimony.
6. Jury Instructions: Pleadings: Evidence. Whether requested to do so or not, a
trial court has the duty to instruct the jury on issues presented by the pleadings
and the evidence.
Appeal from the District Court for Lancaster County, robert
r. otte, Judge, on appeal thereto from the County Court for
Lancaster County, laurie yardley, Judge. Judgment of District
Court affirmed.
Dennis R.k eefe, Lancaster Countyp ublic Defender, and
Andrew D. Weeks for appellant.
Jonb runing, Attorney General, and George R. Love for
appellee.
irwiN, sievers, and Cassel, Judges.
Cassel, Judge.
INTRODUCTION
In this appeal from a conviction for driving under the
influence of alcohol (DUI), Roy Rodriguez asserts that a
breathalyzer generated breath test result should not have been
admissible because it was not immediately recorded on the
prescribed form. We conclude that because this was an error
of “technique” but not of “method,” the county court did not
abuse its discretion in admitting the evidence. For this rea
son, the county court did not err in instructing the jury on a
theory of DUI based on breath test results. We therefore affirm
the judgment of the district court, which affirmed the county
court’s judgment.
STATE v.RODRIGUE z 	105
Cite as 18 Neb. App. 104

bACkGROUND
On November 15, 2007, Rodriguez was involved in an
accident with another vehicle while he was trying to pull out
of a gas station. After arriving at the scene, Lincoln police
officer David A. Lopez noticed that Rodriguez appeared
to be under the influence of an alcoholic beverage. Lopez
smelled a “moderate odor” on Rodriguez; noted that he had
“bloodshot, watery eyes [and] slurred speech”; and observed
that he swayed and stumbled while walking. Lopez then
administered a number of sobriety tests in which Rodriguez
performed poorly. Subsequently, Lopez transported Rodriguez
to a detoxification facility where Lopez administered an
Intoxilyzer Model 5000 breath test—a test which Lopez had
a valid permit to administer. The test record card printed
by the breath test machine showed that Rodriguez had a
breath alcohol level of “.114.” The test record card indicated
the date of the test, the testing machine’s serial number,
Rodriguez’ name, Lopez’ name, the test result, and additional
information. However, Lopez failed to record the test result
on “Attachment 15,” which is entitled the “INTOxILyzER
MODEL 5000 Checklist Technique.”
Rodriguez was subsequently charged in county court with
third offense DUI and with driving while his license was
suspended. Rodriguez moved to suppress the evidence of
the breath test result on the ground that it was not recorded
on Attachment 15. The county court overruled this motion.
At a jury trial, Lopez testified that he had checked off and
completed all the steps contained in Attachment 15 while
administering the breath test with the exception that he had
failed to record the test result in the appropriate blank on
Attachment 15. At the State’s direction and in front of the
jury, Lopez filled in the blank on the checklist for the test
result with the information from the test record card printed
by the breath test machine.b oth Attachment 15 and the
printed test record card were received into evidence. The test
record card received in evidence set forth the test result as
“.114,” and after Lopez filled in the blank in the presence of
the jury, Attachment 15 stated the test result as “0.114.” At the
conclusion of the evidence, the jury found Rodriguez guilty
106 	18NE bRASkAA ppELLATERE pORTS

of both charges. The county court later sentenced Rodriguez.
Rodriguez then appealed to the district court, which affirmed
both convictions.
Rodriguez now timely appeals to this court.p ursuant to
authority granted to this court under Neb. Ct. R. App.p .
§ 2 111(b)(1) (rev. 2008), this case was ordered submitted
without oral argument.
ASSIGNMENTS OF ERROR
Rodriguez assigns, reordered and restated, that the district
court erred in finding that the county court did not abuse its
discretion in (1) receiving Attachment 15 and the breath test
record card as exhibits, (2) allowing Lopez to fill in Attachment
15 at the time of trial even though Lopez stated that he had
no recollection of the breath test machine’s digital readout,
and (3) instructing the jury on the “per se” theory of DUI. In
this appeal, Rodriguez does not raise any issue relating to the
conviction for driving with a suspended license, and thus, we
mention it no further.
STANDARD OF REVIEW
[1] Where the Nebraska Evidence Rules commit the eviden
tiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discre
tion. State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).
[2] Whether jury instructions given by a trial court are cor
rect is a question of law. When dispositive issues on appeal
present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below. State v. Fischer, 272 Neb. 963, 726 N.W.2d
176 (2007).
ANALySIS
Admissibility of Attachment 15 and Test Card.
Rodriguez argues that Attachment 15 and the test record
card from the breath test machine are not admissible as evi
dence of the breath test result for two reasons. First, he asserts
that a digital reading generated on the machine at the time of
the test, as opposed to the test card printout, is the actual breath
test result. He argues that because Lopez cannot recall and did
STATE v.RODRIGUE z 	107
Cite as 18 Neb. App. 104

not record this digital reading, there is no admissible breath
test result.
We find nothing in the statutes or regulations governing
breath test results that would support this argument. Rodriguez
does not identify, nor can we find, any regulation requiring the
testing officer to observe the digital reading on the evidentiary
breath testing device as the source of the data to be recorded
on the checklist.
The regulations only inferentially address the acts of observ
ing and recording the test result. For evidentiary breath testing
devices, the regulations contemplate a printed test record card
and declare the completed checklist as the official record of
the breath test. However, the regulations do not prescribe how
the testing officer is to observe the test result, nor the process
of transferring the information to the completed checklist. A
“record card” is defined as “the card or tape printed by an
evidentiary breath testing device.” 177 Neb. Admin. Code,
ch. 1, § 001.18 (2004). “The printing of a test record card
indicates that the prescribed program of the evidentiary breath
testing device has been completed.” 177 Neb. Admin. Code,
ch. 1, § 002.01D (2004). Section 002.01C declares that the
“completed checklist . . . shall be the official record of breath
test results.” 177 Neb. Admin. Code, ch. 1, § 002.01C (2004).
From these regulations, we infer that the officer may observe
the result printed on the record card and must record the result
on the checklist.
This inference is supported by the different treatment under
the regulations afforded to preliminary breath testing devices.
Under § 002.01D1, preliminary breath testing devices are not
required to produce a printed test record and “the results of a
preliminary breath test may be reported as a digital readout or
as a pass or fail.” 177 Neb. Admin. Code, ch. 1, § 002.01D1
(2004). It follows that because the regulations require the print
ing of a test record card for an evidentiary breath testing device
but not for a preliminary breath testing device, the printed
result shown on the record card of the evidentiary breath test
ing device may be recorded on the checklist as the official
record of the breath test result.
108 	18NE bRASkAA ppELLATERE pORTS

The second ground on which Rodriguez asserts that the evi
dence was inadmissible is that it was not the “official record”
of the breath test. We take this as an argument that the State
failed to establish sufficient foundation for these exhibits to be
admitted into evidence.
[3] 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 testing, (2) that the person administering the test was quali
fied and held a valid permit, (3) that the test was properly con
ducted under the methods stated by the Department of Health
and Human Services Regulation and Licensure, and (4) that all
other statutes were satisfied. State v. Kuhl, 276 Neb. 497, 755
N.W.2d 389 (2008).
Rodriguez argues only that the State failed to prove the
third foundational requirement because, he claims, the test
did not comply with the rules as set forth in the Nebraska
Administrative Code. More specifically, he argues that the
Nebraska Administrative 	Code 	requires 	that 	in 	order 	for
the breath test result to be valid, it had to be recorded on
Attachment 15 at the time the test was administered, which
Lopez did not do.
The regulations provide no support for this argument. No
regulation specifies the time at which breath test results must
be recorded. Rodriguez relies on § 002.01C, which states:
“The completed checklist as found in these rules and regula
tions shall be the official record of breath test results.”b ut
§ 002.01C does not speak to the question of timing.
[4,5] The State’s response to Rodriguez’ argument alleges
that Lopez’ recordkeeping is merely a question of “‘tech
nique’” rather than one of “‘method.’”b rief for appellee at
8. The failure to perform a test using the prescribed methods
makes the test result inadmissible. See State v. Kubik, 235
Neb. 612, 456 N.W.2d 487 (1990). In contrast, deficiencies in
the techniques used to test the blood or breath alcohol level
in DUI cases generally are of no foundational consequence,
but affect only the weight and credibility of the testimony.
See State v. Trampe, 12 Neb. App. 139, 668 N.W.2d 281
STATE v.RODRIGUE z 	109
Cite as 18 Neb. App. 104

(2003). See, also, State v. Green, 223 Neb. 338, 389 N.W.2d
557 (1986).
Under the Nebraska Administrative Code, a “[m]ethod” is
specifically defined as “the name of the principle of analysis”
and “[t]he method may be a laboratory method.” 177 Neb.
Admin. Code, ch. 1, § 001.16 (2004). “Technique” is defined
as “a set of written instructions which describe the procedure,
equipment, and equipment preventive maintenance necessary
to obtain an accurate alcohol content test result.” 177 Neb.
Admin. Code, ch. 1, § 001.21 (2004). While numerous cases
discuss the distinction between method and technique, none
have arisen in the precise context before us. See, State v. Royer,
276 Neb. 173, 753 N.W.2d 333 (2008) (failure to comply
with regulations governing verification of repair records not
method); State v. Kubik, supra (delay between driving and test
ing goes to weight but not admissibility of evidence); State v.
Green, supra.
We conclude that the checklist is a technique because
the Nebraska Administrative Code treats it as such and it is
unrelated to the actual scientific process in which breath test
results are determined. The Nebraska Administrative Code
specifically refers to Attachment 15 as a “[c]hecklist tech
nique.” 177 Neb. Admin. Code, ch. 1, § 008.01D (2004).
Further, Attachment 15 is not the scientific process in which
the breath test sample is actually analyzed; it merely provides
the officer with “written instructions” which describe the
applicable “procedure.” See § 001.21. Therefore, we conclude
that the county court did not abuse its discretion in admitting
Attachment 15 and the breath test record card into evidence
and that Lopez’ deficiency in filling out Attachment 15 merely
goes to the credibility and weight of the breath test result as
opposed to its admissibility.
We also reject Rodriguez’ argument that the breath test is
not valid because at trial, Lopez did not personally remember
the result displayed on the machine even though he had the test
record card before him. This is not of consequence, because the
test record card contains the result actually generated by the
breath test equipment.
110 	18NE bRASkAA ppELLATERE pORTS

Writing of Test Result on Attachment 15 at Trial.
Rodriguez argues that Lopez should not have been able to
record the breath test result on Attachment 15 at trial for much
the same reasons that he argued that both Attachment 15 and
the breath test record card were not admissible. We conclude
that this was not a prejudicial error. First, the fact that the
breath test result was not recorded on Attachment 15 until the
time of trial had no effect on the admissibility of the breath
test result, as we have discussed above. Second, the time at
which the test result was recorded on Attachment 15 was not
misrepresented to the jury. It was made clear to the jury that
the breath test result was not recorded on Attachment 15 until
the time of trial.b ecause Attachment 15 was completed in the
presence of the jurors, they could readily determine what por
tion of Attachment 15 was completed at that time. Additionally,
it was apparent from the face of Attachment 15 which informa
tion Lopez had subsequently added. The Attachment 15 that
was received into evidence was a copy of an original, and all
of Lopez’ previous writing appeared in black. However, the
result from the breath test record card was printed in blue ink.
Thus, Lopez’ subsequent recording of the breath test result was
not misleading.
Jury Instructions.
[6] Rodriguez asserts that the county court erred in instruct
ing the jury on the “per se” theory of DUI.b riefly summa
rized, Rodriguez’ argument is that the court abused its discre
tion in instructing the jury that the State could prove the under
the influence element of DUI by showing that Rodriguez had
a breath alcohol concentration in excess of the legal limit.
Rodriguez argues that the evidence was not sufficient to justify
this instruction because the breath test result was not admis
sible. However, we have already determined that the breath
test result was admissible. Thus, the evidence warranted giving
the instruction. Whether requested to do so or not, a trial court
has the duty to instruct the jury on issues presented by the
pleadings and the evidence. State v. Weaver, 267 Neb. 826, 677
N.W.2d 502 (2004).
STATE v.RODRIGUE z 	111
Cite as 18 Neb. App. 104

CONCLUSION
because the county court did not abuse its discretion in
admitting the breath test result into evidence and did not err
in instructing the jury on a theory of DUI based on breath
test results, we affirm the district court’s judgment affirming
Rodriguez’ DUI conviction.
affirmed.
mattieo a. C oNdoluCi , aPPellaNt, v.
state of Nebraska , aPPellee .
775 N.W.2d 196
Filed November 3, 2009. 	No. A 09 638.
1. Mental Health: Time. Neb. Rev. Stat. § 71 1207 (Cum. Supp. 2008) of the Sex
Offender Commitment Act requires service of a summons upon the subject which
fixes a time for the hearing before a mental health board within 7 calendar days
after the subject has been taken into emergency protective custody.
2. Habeas Corpus. Habeas corpus is a civil remedy constitutionally available in a
proceeding to challenge and test the legality of a person’s detention, imprison
ment, or custodial deprivation of the person’s liberty.
3. ____. If a person is imprisoned or detained without any legal authority, upon
making the same appear to the judge, by oath or affirmation, it shall be the
judge’s duty to forthwith allow a writ of habeas corpus, directed to the proper
officer, person, or persons who detains such prisoner.
4. ____. The person to whom a writ of habeas corpus is directed makes response to
the writ, not to the petition.A respondent, in his answer to the writ, seeks simply
to justify his conduct and relieve himself from the imputation of having impris
oned without lawful authority a person entitled to his liberty.
Appeal from the District Court for Sarpy County: william
b. 	zastera, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
Mattieo A. Condoluci, pro se.
John W. Reisz, Deputy Sarpy County Attorney, for appellee.
sievers and Cassel, Judges, and H aNNoN, Judge, Retired.
sievers, Judge.
According to his application for writ of habeas corpus filed
May 20, 2009, in the district court for Sarpy County, Mattieo
112 	18NE bRASkAA ppELLATERE pORTS