State v. Royer

CONCLUSION
We conclude that Piuze and McCord’s agreement to divide
fees did not encompass the fees that Piuze received for the
appellate work (i.e., the additional 10 percent of Shipler’s
recovery). Piuze did not breach the fee-division agreement when
he declined to split the fees relating to the appellate work. We
reverse because the district court erred in sustaining McCord’s
motion for summary judgment.
reverSed .
S tephan, J., not participating.
STATE v. ROyER 	173
Cite as 276 Neb. 173
S tate of nebraSka , appellee , v .
andreW royer , appellant .
753 N.W.2d 333
Filed July 18, 2008. 	No. S-07-834.
1. Courts: Appeal and Error. Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error appearing on
the record.
2. 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.
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. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. A trial court’s ruling on a motion to suppress based on
the Fourth Amendment, apart from determinations of reasonable suspicion to con-
duct investigatory stops and probable cause to perform warrantless searches, is to
be upheld on appeal unless its findings of fact are clearly erroneous. The ultimate
determinations of reasonable suspicion to conduct an investigatory stop and prob-
able cause to perform a warrantless search are reviewed de novo.
5. Constitutional Law: Investigative Stops: Search and Seizure: Probable Cause.
The Fourth Amendment guarantees the right to be free of unreasonable search
and seizure. This guarantee requires that an arrest be based upon probable cause
and limits investigatory stops to those made upon an articulable suspicion of
criminal activity.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

6. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no mat-
ter how minor, creates probable cause to stop the driver of a vehicle.
7. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. Once a
vehicle is lawfully stopped, a law enforcement officer may conduct an investigation
reasonably related in scope to the circumstances that justified the traffic stop.
8. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. In order to continue to detain a motorist, an officer must have a reasonable,
articulable suspicion that the person is involved in criminal activity beyond that
which initially justified the stop.
9. Probable Cause: Words and Phrases. Reasonable suspicion entails some mini-
mal level of objective justification for detention, something more than an inchoate
and unparticularized suspicion, but less than the level of suspicion required for
probable cause.
10. Motor Vehicles: Police Officers and Sheriffs: Probable Cause. Field sobriety
tests may be justified by a police officer’s reasonable suspicion based upon specific
articulable facts that the driver is under the influence of alcohol or drugs.
11. Blood, Breath, and Urine Tests: Evidence. There are four foundational require-
ments which the State must establish before it may offer into evidence the results
of a breath test: (1) The testing device or equipment was in proper working order
at the time of conducting the test, (2) the person giving and interpreting the test
was properly qualified and held a valid permit issued by the Nebraska Department
of Health and Human Services at the time of conducting the test, (3) the test
was properly conducted in accordance with a method currently approved by the
Nebraska Department of Health and Human Services, and (4) there was compli-
ance with all statutory requirements.
Appeal from the District Court for Lancaster County, J ohn a.
C olborn, Judge, on appeal thereto from the County Court for
Lancaster County, laurIe yardley, Judge. Judgment of District
Court affirmed.
Brad Roth, of McHenry, Haszard, Hansen, Roth & Hupp,
P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, Edward G. Vierk, George
R. Love, and Amanda Spracklen-Hogan, Senior Certified Law
Student, for appellee.
heavICan, 	C.J., 	W rIght, 	C onnolly, 	gerrard, 	S tephan,
mCC ormaCk, and mIller -lerman, JJ.
W rIght, J.
NATURE OF CASE
Andrew Royer rapidly accelerated his vehicle from a stop sign
and squealed his tires. He was stopped by a police officer and
174 	276 NEBRASkA REPORTS

given field sobriety tests. He was then transported to a detoxi-
fication facility and given a breath test. It showed that Royer
had .234 of a gram of alcohol per 210 liters of breath. He was
charged with and convicted of third-offense driving while under
the influence of alcoholic liquor or drugs (DUI). He appealed to
the Lancaster County District Court, which affirmed the county
court’s judgment.
SCOPE OF REVIEW
[1,2] Both the district court and the Nebraska Supreme Court
generally review appeals from the county court for error appear-
ing on the record. State v. Dittoe, 269 Neb. 317, 693 N.W.2d 261
(2005). 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. Id.
[3] When reviewing a judgment for errors appearing on the
record, an appellate court’s inquiry is whether the decision con-
forms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable. Id. An appellate
court nonetheless has an obligation to resolve questions of law
independently of the conclusions reached by the trial court. See
State v. Jensen, 269 Neb. 213, 691 N.W.2d 139 (2005).
[4] A trial court’s ruling on a motion to suppress based on
the Fourth Amendment, apart from determinations of reasonable
suspicion to conduct investigatory stops and probable cause to
perform warrantless searches, is to be upheld on appeal unless
its findings of fact are clearly erroneous. The ultimate deter-
minations of reasonable suspicion to conduct an investigatory
stop and probable cause to perform a warrantless search are
reviewed de novo. See State v. Allen, 269 Neb. 69, 690 N.W.2d
582 (2005), disapproved on other grounds, State v. McCulloch,
274 Neb. 636, 742 N.W.2d 727 (2007).
FACTS
Royer was stopped by Officer Bryan Hanson of the Lincoln
Police Department after Royer accelerated his vehicle rapidly
from a stop sign and squealed his tires. Upon contacting Royer,
Hanson observed that Royer’s eyes were watery and bloodshot,
STATE v. ROyER 	175
Cite as 276 Neb. 173

and Hanson detected a strong odor of alcohol on Royer’s
breath. Royer stated that he had consumed four to five alco-
holic beverages.
Royer submitted to field sobriety tests. After the tests were
completed, Hanson took Royer into custody and walked him to
the police cruiser. Hanson observed Royer swaying and stum-
bling. Based on Hanson’s observations, training, and experi-
ence, and on Royer’s performance on the field sobriety tests,
Hanson believed that Royer was under the influence of alcohol.
Hanson transported Royer to a detoxification facility. While in
transit, Royer stated that this would be his third offense and that
he knew he would “blow over the legal limit.” At the facility,
Hanson administered a formal breath test using an Intoxilyzer,
which showed that Royer had .234 of a gram of alcohol per 210
liters of breath.
Royer was charged with third-offense DUI, in violation of
Neb. Rev. Stat. § 60-6,196 (Reissue 2004). Royer moved to sup-
press, asserting that (1) the stop and seizure were not based on
a reasonable, articulable suspicion that a crime had been or was
about to be committed; (2) the arrest was not based on probable
cause; and (3) the arresting officer did not have knowledge based
on information reasonably trustworthy under the circumstances
that justified a prudent belief that Royer was committing or
had committed a crime. Therefore, he argued that (1) there was
no probable cause and the arrest was unlawful, (2) the search
and seizure were not incident to a lawful arrest and exceeded
the scope of searches incident to an arrest, (3) his statements
were taken in violation of his rights under the 5th and 14th
Amendments, and (4) all breath tests were taken in violation of
Nebraska law and 177 Neb. Admin. Code, ch. 1 (2004).
After the suppression hearing, the county court found that
the field sobriety tests were not coerced and that even if the
administration of the field sobriety tests amounted to a search,
the officer had a reasonable, articulable suspicion that Royer was
under the influence based on his driving, the odor of alcohol, his
admission of drinking, and his watery, bloodshot eyes.
The court determined that the officer followed title 177 in
administering the breath test, because he reviewed the main-
tenance records of the Intoxilyzer and had access to the repair
176 	276 NEBRASkA REPORTS

records that indicated no repair work had been done on the
machine during the relevant period. The court overruled Royer’s
motion to suppress.
Following a bench trial, the court found Royer guilty of third-
offense DUI. At the enhancement hearing, Royer objected to one
prior conviction because part of the file-stamp date on the order
was not legible—it indicated “APR 30 20.” He also argued that
another conviction did not indicate whether Royer appeared with
counsel or whether he waived counsel.
The court found the prior convictions to be valid. The April
30 date in question was on the same page in the record as the
sentencing, which occurred on April 30, 2002, and the court
found that the document met the file-stamp requirement. It also
found that Royer was represented by counsel at the time of the
plea and sentencing in question.
Royer was ordered to pay a fine of $600, sentenced to 10
days in jail, and placed on probation for 36 months. He was also
ordered to pay costs and fees of $1,029, and his driver’s license
was revoked for 1 year.
Royer appealed to the district court, asserting that the county
court erred in finding him guilty of third-offense DUI, in the
admission of certain evidence, and in overruling the motion
to suppress. Royer also claimed the court erred in considering
certain prior convictions at the enhancement hearing, because
the prior convictions were not properly file stamped and did not
show that Royer was represented at arraignment.
The district court affirmed. It found no error in the determi-
nation that proper foundation was laid for the admission of the
Intoxilyzer breath test results and that Hanson followed title
177. The court also concluded that the reckless acceleration of
Royer’s vehicle was sufficient to establish the reasonable sus-
picion necessary to justify the investigatory stop and that the
officer’s observations after the stop were sufficient to justify the
request to perform the field sobriety tests.
As to the claimed error in the enhancement, the district court
determined that the county court’s written notations reflected that
the sentencing order was entered on April 30, 2002. Although
the final two numbers of the year were not legible on the file
stamp, the court found no indication that the file stamp was
STATE v. ROyER 	177
Cite as 276 Neb. 173

placed on the record at any time other than April 30, 2002. It
concluded that the file-stamp date was April 30, 2002, and that
the prior conviction could be used to enhance Royer’s sentence.
Royer’s current conviction and sentence were affirmed.
ASSIGNMENTS OF ERROR
Royer argues that the district court erred in (1) finding that
evidence of the field sobriety tests was admissible, (2) deter-
mining there was sufficient probable cause to arrest Royer, (3)
affirming the county court’s finding that the arresting officer
followed title 177, and (4) finding that a prior conviction which
was not properly file stamped was a final order and admissible
for enhancement.
ANALySIS
fIeld S obrIety teStS
[5] Royer claims that the field sobriety tests violated his right
to be free from unreasonable search and seizure because field
sobriety tests constitute a search within the scope of the Fourth
Amendment to the U.S. Constitution. The Fourth Amendment
guarantees the right to be free of unreasonable search and sei-
zure. This guarantee requires that an arrest be based upon prob-
able cause and limits investigatory stops to those made upon an
articulable suspicion of criminal activity. See Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[6] Royer was stopped after the police officer observed
Royer’s vehicle squeal its tires and accelerate rapidly from a
stop sign. Royer makes no argument that the officer lacked
probable cause to stop his vehicle. A traffic violation, no matter
how minor, creates probable cause to stop the driver of a vehi-
cle. State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008).
Therefore, we conclude that the officer had probable cause to
stop Royer.
[7-9] Once a vehicle is lawfully stopped, a law enforcement
officer may conduct an investigation reasonably related in scope
to the circumstances that justified the traffic stop. Id. In order
to continue to detain a motorist, an officer must have a reason-
able, articulable suspicion that the person is involved in crimi-
nal activity beyond that which initially justified the stop. Id.
178 	276 NEBRASkA REPORTS

Reasonable suspicion entails some minimal level of objective
justification for detention, something more than an inchoate and
unparticularized suspicion, but less than the level of suspicion
required for probable cause. Id. Reasonable suspicion to detain
an individual following a traffic stop must be determined on a
case-by-case basis. See id.
Hanson observed that Royer’s eyes were watery and blood-
shot. Hanson detected a strong odor of alcohol on Royer’s
breath, and Royer admitted to consuming four or five alcoholic
beverages. Therefore, Hanson had a reasonable, articulable sus-
picion that Royer was under the influence of alcohol or drugs in
violation of § 60-6,196.
Royer asks this court to hold that a field sobriety test is a full
search and seizure and must be supported by probable cause. He
cites People v. Carlson, 677 P.2d 310 (Colo. 1984), which this
court previously considered in State v. Thomte, 226 Neb. 659,
413 N.W.2d 916 (1987). We stated that other jurisdictions have
determined that a roadside sobriety test “is more analogous to a
limited Terry stop than to a formal arrest and may be justified by
an officer’s reasonable suspicion, based on specific articulable
facts, that the driver is intoxicated.” State v. Thomte, 226 Neb. at
664, 413 N.W.2d at 919.
In State v. Thomte, supra, we did not reach the issue whether
probable cause was required to administer roadside sobriety
tests, because following the initial stop, the officer’s observa-
tions of the defendant constituted probable cause to believe that
he was driving while under the influence of alcohol. Therefore,
the sobriety tests were reasonable under the circumstances.
[10] The issue is again before us. We hold that field sobriety
tests may be justified by a police officer’s reasonable suspicion
based upon specific articulable facts that the driver is under the
influence of alcohol or drugs. In determining the reasonableness
of a search for purposes of the Fourth Amendment, the court
balances the intrusion upon an individual’s privacy with the need
to promote governmental interests. See State v. McKinney, 273
Neb. 346, 730 N.W.2d 74 (2007). State v. McKinney, supra, set
out the balancing test for determining the reasonableness of a
search, and other courts have applied a similar test to determine
the reasonableness of a field sobriety test.
STATE v. ROyER 	179
Cite as 276 Neb. 173

In State v. Superior Court, 149 Ariz. 269, 718 P.2d 171
(1986), the defendant was stopped because his vehicle was
meandering within its lane. His appearance and breath indicated
intoxication, and the officer directed him to perform six road-
side sobriety tests. Defense counsel asserted that any roadside
sobriety test was a full search and must therefore be founded
on probable cause. He relied on People v. Carlson, 677 P.2d at
317, in which the Colorado Supreme Court held that “[r]oadside
sobriety testing constitutes a full ‘search’ in the constitutional
sense of that term and therefore must be supported by prob-
able cause.”
The Arizona Supreme Court disagreed and held that the
administration of roadside, performance-based sobriety tests
does not require probable cause. The court stated that “the
necessity of the search is balanced against the invasion of the
privacy of the citizen that the search entails.” State v. Superior
Court, 149 Ariz. at 274, 718 P.2d at 176. The court noted that
the state had a compelling interest in removing drunk drivers
from the highways. This compelling interest must be weighed
against the “substantiality of the intrusion” of roadside sobriety
tests that measure the physical performance of the suspected
drunk driver. Id.
In an analogy to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968), the court reasoned that the threat to public
safety posed by a person driving under the influence of alcohol
was as great as the threat posed by a person illegally concealing
a gun. State v. Superior Court, supra. The battery of roadside
tests was a limited search and was more analogous to a Terry
stop than to a formal arrest. State v. Superior Court, supra.
As did the Arizona court, we conclude that field sobriety tests
may be justified by an officer’s reasonable suspicion based upon
specific articulable facts that a driver is under the influence of
alcohol or drugs. The reasonable suspicion must be determined
on a case-by-case basis.
Other jurisdictions have also rejected the idea that probable
cause is required before field sobriety tests may be administered.
See, e.g., Rogala v. District of Columbia, 161 F.3d 44 (D.C. Cir.
1998) (field sobriety test is such minimal intrusion on driver of
car that only reasonable suspicion is required to conduct such
180 	276 NEBRASkA REPORTS

test); Galimba v. Municipality of Anchorage, 19 P.3d 609 (Alaska
App. 2001) (field sobriety tests are not generally considered
searches for constitutional purposes; police do not need probable
cause sufficient for arrest before requesting typical field sobriety
tests); State v. Ferreira, 133 Idaho 474, 988 P.2d 700 (Idaho
App. 1999) (administration of field sobriety tests following traf-
fic stop is but investigative detention). As the Montana Supreme
Court stated in Hulse v. State, Dept. of Justice, 289 Mont. 1, 21,
961 P.2d 75, 87 (1998), “[W]e conclude that the State’s interest
in administering field sobriety tests based upon particularized
suspicion rather than the more stringent standard of probable
cause substantially outweighs the resulting limited intrusion into
an individual’s privacy.”
A trial court’s ruling on a motion to suppress based on the
Fourth Amendment, apart from determinations of reasonable
suspicion to conduct investigatory stops and probable cause to
perform warrantless searches, is to be upheld on appeal unless
its findings of fact are clearly erroneous. The ultimate deter-
minations of reasonable suspicion to conduct an investigatory
stop and probable cause to perform a warrantless search are
reviewed de novo. See State v. Allen, 269 Neb. 69, 690 N.W.2d
582 (2005), disapproved on other grounds, State v. McCulloch,
274 Neb. 636, 742 N.W.2d 727 (2007). The county court deter-
mined that even if the field sobriety tests amounted to a search,
the officer had a reasonable, articulable suspicion that Royer was
under the influence based on his driving, the odor of alcohol, his
admission of drinking, and his watery, bloodshot eyes. The dis-
trict court determined that the reckless acceleration of Royer’s
vehicle was sufficient to establish the reasonable suspicion
necessary to justify the investigatory stop and that the officer’s
observations after the stop were sufficient to justify a request to
perform field sobriety tests. We agree.
Hanson was required to have only a reasonable, articulable
suspicion that Royer was driving under the influence in order
to expand the scope of the initial traffic stop and detain Royer
for field sobriety tests. Hanson observed immediately upon
contact with Royer that he had watery, bloodshot eyes and that
he smelled of alcohol. Royer admitted to Hanson that he had
consumed four or five alcoholic beverages.
STATE v. ROyER 	181
Cite as 276 Neb. 173

As Hanson walked Royer to the police cruiser, Royer swayed
and stumbled. Based upon his observation and Royer’s perfor-
mance on the field sobriety tests, Hanson believed that Royer
was under the influence of alcohol. The county court was correct
in finding that Hanson had a reasonable, articulable suspicion
that Royer was driving under the influence, and the district court
was correct in affirming the county court’s decision.
C omplIanCe WIth tItle 177
Royer argues that the breath test was not conducted in accord-
ance with the methods currently approved by the Nebraska
Department of Health and Human Services (DHHS) and that,
therefore, the test results should have been suppressed. The
county court admitted the breath test results and overruled the
motion to suppress, and the district court affirmed the county
court’s judgment.
State law concerning tests to determine if a party has been
driving under the influence provides that blood or breath tests
must be performed according to methods approved by DHHS
and by an individual possessing a valid permit issued by DHHS.
Neb. Rev. Stat. § 60-6,201(3) (Reissue 2004).
A prerequisite to the validity of a breath test made under
[Neb. Rev. Stat.] § 60-6,197(3), and consequently a pre-
requisite to the validity of an arrest, is that the test must
be performed in accordance with the procedures approved
by the Department of Health and “by an individual pos-
sessing a valid permit issued by such department for such
purpose . . . .”
(Emphasis omitted.) McGuire v. Department of Motor Vehicles,
253 	Neb. 	92, 	96, 	568 	N.W.2d 	471, 	474 	(1997), 	quoting
§ 60-6,201(3).
Hanson testified that he held a valid Class B permit to
administer a breath test. A Class B permit allows its holder
to “perform a chemical test to analyze a subject’s breath for
alcohol content by an approved method.” 177 Neb. Admin.
Code, ch. 1, § 001.08B. The operating rules for the holder of
a Class B permit provide that to determine the alcohol content
in breath, the permit holder shall “[a]scertain that maintenance
and calibration checks have been performed on devices prior
182 	276 NEBRASkA REPORTS

to testing” by reviewing “the current 40-day maintenance and
calibration check performed on the testing device, including . . .
the results of [DHHS]’ report of the periodic 190[-]day device
check sample.” 177 Neb. Admin. Code, ch. 1, § 007.02A. The
permit holder is also to maintain or have access to “the permit
to perform chemical tests”; a current copy of the rules and
regulations; “checklist technique forms, test record cards, or
tapes produced by testing device”; and “the record of testing
devices’ repairs.” 177 Neb. Admin. Code, ch. 1, § 007.02B.
Under the rules, the permit holder is also directed to use the
appropriate checklist to record the test. 177 Neb. Admin. Code,
ch. 1, § 007.02C.
The checklist technique for the Intoxilyzer Model 5000 used
by Hanson to test Royer’s breath indicates that the first step is
to verify that maintenance, repair, and calibration verification
have been performed by reviewing the maintenance record. The
tester then turns on the instrument and observes the subject for
15 minutes prior to testing. The “‘START TEST’” button is then
pushed, and the test record card is inserted. A clean mouthpiece
is attached, and the subject blows into the breath tube until a
sufficient sample is delivered. The digital reading is recorded,
the used mouthpiece is discarded, the card is removed, and the
tester turns off the instrument.
Hanson testified that he had been trained to administer the
Intoxilyzer Model 5000. Prior to administering the test, Hanson
observed Royer for 15 minutes, read Royer the postarrest chemi-
cal test advisement form, and completed the Intoxilyzer Model
5000 checklist. Royer agreed to provide a breath sample, and
the sample was sufficient to obtain a result, which was recorded
by Hanson.
The parties stipulated that the scheduled maintenance and
calibration verification log included the record of mainte-
nance for 40 days and 190 days, and they stipulated that no
repairs had been made to the Intoxilyzer during the relevant
time. The scheduled maintenance and calibration verification
log received into evidence indicated that the maintenance and
calibration checks were performed on July 15, 2005, and were
valid until August 23. The Intoxilyzer was tested on May 3,
2005, using a “Simulator Check Sample.” The results of this
STATE v. ROyER 	183
Cite as 276 Neb. 173

testing fell within the target value range as provided in title
177 and were valid until November 14. No repair work had
been done on the Intoxilyzer during the period included in
the log. Royer’s breath test was administered on August 9 and
was within the period covered by the maintenance and calibra-
tion checks.
[11] Royer argues the State must prove that the officer admin-
istering the breath test checked the maintenance record in order
to meet foundational requirements for the admission of the
breath test. This court has held that there are four foundational
requirements which must be met before the State may offer into
evidence the results of a breath test:
“(1) That the testing device or equipment was in proper
working order at the time of conducting the test; (2) That
the person giving and interpreting the test was properly
qualified and held a valid permit issued by the Nebraska
Department of Health at the time of conducting the test; (3)
That the test was properly conducted in accordance with a
method currently approved by the Nebraska Department of
Health; and (4) That there was compliance with all statu-
tory requirements.”
State v. Dail, 228 Neb. 653, 661, 424 N.W.2d 99, 104 (1988).
Royer argues that Hanson did not follow the regulations,
because he did not verify whether any repairs had been per-
formed by reviewing the repair records and because he did
not review the report of the periodic 190-day check of the
Intoxilyzer. Although there may be a dispute about whether
Hanson reviewed the repair records, any failure to do so does
not invalidate the test under these circumstances. Royer stipu-
lated that there had been no repairs to the instrument during the
relevant period of time. Evidence in the record establishes that
the calibration of the instrument was correct and that it was in
proper working order.
We review the district court’s decision for errors appearing
on the record and, thus, consider whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. See State v. Dittoe, 269
Neb. 317, 693 N.W.2d 261 (2005). The lower courts’ findings
concerning administration of the breath test are supported by
184 	276 NEBRASkA REPORTS

competent evidence, and we find no clear error related to the
admission of the breath test evidence.
enhanCement to thIrd -offenSe duI
Royer argues that his conviction was improperly enhanced
to third-offense DUI because there is no record that one of his
prior convictions was a final order. He claims that because the
file stamp on the journal entry showing the conviction cannot be
read, it is not a record of a final conviction.
We note first that this is an attempt to collaterally attack the
2002 DUI conviction. Collateral attacks on previous proceedings
are impermissible unless the attack is grounded upon the court’s
lack of jurisdiction over the parties or subject matter. State v.
Keen, 272 Neb. 123, 718 N.W.2d 494 (2006). Royer’s attack on
the previous conviction is not based on jurisdiction and, thus,
cannot be allowed.
Even if this was not a collateral attack, the document in ques-
tion contains a file stamp that states “APR 30 20.” The final two
numbers of the year are not legible. However, the transcript also
includes a date stamp of April 30, 2002, on other documents: the
entry indicating that Royer pled guilty to the charge, the written
order for the DUI plea, and the sentencing order. In addition, a
waiver of rights document was signed and dated by Royer on
April 30, 2002.
Under Neb. Rev. Stat. § 60-6,197.02(1)(a) (Reissue 2004), a
conviction may be counted as a prior conviction for purposes of
enhancement if it is for a violation that was committed within
the previous 12 years. The document that Royer is attempt-
ing to challenge here clearly indicates the first two digits of a
year: “20.” Since the complaint in the current case was filed in
2005, it is obvious that the charges were filed within 12 years
of the previous conviction, which occurred at some time in the
21st century.
Royer argues that the missing digits in the date could have
been “06,” meaning that the conviction occurred on April 30,
2006, which was after the date of the incident leading to the
charges here. We find no basis for this suggestion in the record.
The citation upon which the conviction was based is dated
February 6, 2002, and it directed Royer to appear in court on
STATE v. ROyER 	185
Cite as 276 Neb. 173

March 4. He waived arraignment and entered a not guilty plea
on March 13. Royer entered a guilty plea on April 30.
The other basis upon which a prior conviction can be chal-
lenged is the claim that the conviction was obtained in viola-
tion of the due process requirements of the state and federal
Constitutions. See State v. Louthan, 257 Neb. 174, 595 N.W.2d
917 (1999). At the time of that case, state law allowed a defend-
ant 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 coun-
sel. State v. Louthan, supra. However, Royer has made no such
argument. In addition, the record of the prior conviction includes
a waiver of rights signed by Royer and his attorney. We need not
address this issue further.
The county court found the prior convictions to be valid, not-
ing that the April 30 date in question was on the same page as
the April 30, 2002, sentencing. The district court determined that
although the final two numbers of the year were not legible on
the file stamp, there was no indication that the file stamp was
placed on the record at any time other than April 30, 2002. The
district court concluded that the file-stamp date was April 30,
2002, and that the prior conviction could be used to enhance
Royer’s sentence. We find no error on the record concerning the
prior convictions.
CONCLUSION
In order to compel a driver to submit to field sobriety tests,
a law enforcement officer need only have a reasonable, articu-
lable suspicion that the driver is under the influence of alcohol
or other drugs in violation of § 60-6,196. The requirements of
title 177 were followed in this case, and the enhancement to
third-offense DUI was proper. The judgment of the district court,
which affirmed the judgment of the county court, is affirmed.
affIrmed .
186 	276 NEBRASkA REPORTS