State v. Daly

CONCLUSION
It is the judgment of this court that Smith should be sus-
pended from the practice of law for 6 months, effective imme-
diately, after which period he may apply for reinstatement
to the bar, provided that he has returned all fees to Johnson.
Smith shall comply with Neb. Ct. R. § 3-316, and upon failure
to do so, he shall be subject to punishment for contempt of this
court. Smith is directed to pay costs and expenses in accord-
ance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007)
and Neb. Ct. R. §§ 3-310(P) and 3-323(B) within 60 days after
an order imposing costs and expenses, if any, is entered by
the court.
Judgment of suspension.
state of nebraska , appellee , v.
Jacob J. daly, appellant.
775 N.W.2d 47
Filed November 20, 2009. 	No. S-08-192.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
2. Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. Courts: Expert Witnesses. Under the Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), jurisprudence, the trial
court acts as a gatekeeper to ensure the evidentiary relevance and reliability
of an expert’s opinion. This gatekeeping function entails a preliminary assess-
ment whether the reasoning or methodology underlying the testimony is valid
and whether that reasoning or methodology properly can be applied to the facts
in issue.
5. ____: ____. In determining the admissibility of an expert’s testimony, a trial
judge may consider several more specific factors that might bear on a judge’s
gatekeeping determination. These factors include whether a theory or technique
can be (and has been) tested; whether it has been subjected to peer review and
STATE v. dALy 	903
Cite as 278 Neb. 903
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

publication; whether, in respect to a particular technique, there is a high known
or potential rate of error; whether there are standards controlling the technique’s
operation; and whether the theory or technique enjoys general acceptance within
a relevant scientific community. These factors are, however, neither exclusive
nor binding; different factors may prove more significant in different cases, and
additional factors may prove relevant under particular circumstances.
6. ____: ____. A court performing a Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v.
Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), inquiry should not require
absolute certainty. Instead, a trial court should admit expert testimony if there are
good grounds for the expert’s conclusion, even if there could possibly be better
grounds for some alternative conclusion.
7. Police Officers and Sheriffs: Expert Witnesses. A law enforcement officer with
the training and experience offered by “drug recognition expert” certification is
sufficiently qualified to testify, based on his or her evaluation, that a suspect was
under the influence of drugs.
8. Drunk Driving: Words and Phrases. As used in Neb. Rev. Stat. § 60-6,196
(Reissue 2004), the phrase “under the influence of alcoholic liquor or of any
drug” requires the ingestion of alcohol or drugs in an amount sufficient to impair
to any appreciable degree the driver’s ability to operate a motor vehicle in a pru-
dent and cautious manner.
9. Convictions: Drunk Driving: Police Officers and Sheriffs: Evidence. Whether
impairment is caused by alcohol or drugs, a conviction for driving under the
influence may be sustained by either a law enforcement officer’s observations of
a defendant’s intoxicated behavior or the defendant’s poor performance on field
sobriety tests.
10. Trial: Expert Witnesses: Appeal and Error. There is no exact standard for fix-
ing the qualifications of an expert witness, and a trial court is allowed discretion
in determining whether a witness is qualified to testify as an expert. Unless the
court’s finding is clearly erroneous, such a determination will not be disturbed
on appeal.
11. Trial: Expert Witnesses. Experts or skilled witnesses will be considered quali-
fied if they possess special skill or knowledge respecting the subject matter
involved superior to that of persons in general, so as to make the expert’s forma-
tion of a judgment a fact of probative value.
12. Trial: Rules of Evidence: Expert Witnesses. A witness may qualify as an expert
by virtue of either formal training or actual practical experience in the field.
13. Rules of Evidence. The fact that evidence is prejudicial is not enough to require
exclusion under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008),
because most, if not all, of the evidence a party offers is calculated to be prejudi-
cial to the opposing party; it is only the evidence which has a tendency to suggest
a decision on an improper basis that is unfairly prejudicial under rule 403.
14. Trial: Courts. A trial court has broad discretion in determining how to perform
its gatekeeper function.
15. Judgments: Evidence: Presumptions: Appeal and Error. An appellate court
presumes in the absence of anything to the contrary that a trial court considered
only competent and relevant evidence in rendering a decision.
904 	278 NEBRASkA REPORTS

16. Constitutional Law: Pretrial Procedure. Confrontation Clause rights are trial
rights that do not extend to pretrial hearings in state proceedings.
17. Trial: Evidence: Testimony: Proof. demonstrative exhibits are admissible if
they supplement a witness’ spoken description of the transpired event, clarify
some issue in the case, and are more probative than prejudicial.
18. ____: ____: ____: ____. demonstrative exhibits are inadmissible when they
do not illustrate or make clearer some issue in the case; that is, where they are
irrelevant or where the exhibit’s character is such that its probative value is sub-
stantially outweighed by the danger of unfair prejudice.
19. Trial: Evidence: Judgments: Appeal and Error. A judgment will not be
reversed on account of the admission or rejection of demonstrative evidence
unless there has been a clear abuse of discretion.
20. Records: Appeal and Error. The presentation of an adequate record for appel-
late review is primarily the responsibility of the parties.
21. Trial: Waiver. A party who fails to insist upon a ruling to a proffered objection
waives that objection.
22. Trial: Evidence: Waiver. If, when inadmissible evidence is offered, the party
against whom such evidence is offered consents to its introduction, or fails
to object or to insist upon a ruling on an objection to the introduction of the
evidence, and otherwise fails to raise the question as to its admissibility, he is
considered to have waived whatever objection he may have had thereto, and the
evidence is in the record for consideration the same as other evidence.
23. Trial: Expert Witnesses: Records: Appeal and Error. A trial court’s gate-
keeping duty requires it to adequately demonstrate by specific findings on the
record that it has performed that duty, because the losing party is entitled to know
that the trial court has engaged in the heavy cognitive burden of determining
whether the challenged testimony was relevant and reliable and to a record that
allows for meaningful appellate review.
24. Expert Witnesses: Appeal and Error. Meaningful appellate review requires
the court to explain its choices so that the appellate court has an adequate basis
to determine whether the analytical path taken by the trial court was within the
range of reasonable methods for distinguishing reliable expert testimony from
false expertise.
25. Trial: Rules of Evidence: Expert Witnesses. A trial court adequately demon-
strates that it has performed its gatekeeping duty when the record shows (1) the
court’s conclusion whether the expert’s opinion is admissible and (2) the reason-
ing the court used to reach that conclusion, specifically noting the factors bearing
on reliability that the court relied on in reaching its determination.
26. Jurors: Appeal and Error. The erroneous overruling of a challenge for cause
will not warrant reversal unless it is shown on appeal that an objectionable juror
was forced upon the challenging party and sat upon the jury after the party
exhausted his or her peremptory challenges.
27. ____: ____. An appellate court will not reverse a conviction based on a challenge
to a potential juror if that person was not ultimately included on the jury, even if
the defendant was required to use a peremptory challenge to remove the person.
28. Juror Qualifications. The true object of challenges, either peremptory or for
cause, is to enable the parties to avoid disqualified persons and secure an
STATE v. dALy 	905
Cite as 278 Neb. 903

impartial jury. When that end is accomplished, there can be no just ground for
complaint against the rulings of the court as to the competency of the jurors.
29. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
30. Trial: Motions for Mistrial: Juries. A mistrial is not necessarily required if the
resulting prejudice can be cured by an admonition to the jury.
31. Motions for Mistrial: Motions to Strike: Appeal and Error. Error cannot ordi-
narily be predicated on the failure to grant a mistrial if an objection or motion to
strike the improper material is sustained and the jury is admonished to disregard
such material.
32. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial will not be disturbed on appeal in the absence of an abuse
of discretion.
33. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the
contrary, it is presumed that a jury followed the instructions given in arriving at
its verdict.
34. Motions for Mistrial: Motions to Strike: Proof. A defendant faces a higher
threshold than merely showing a possibility of prejudice when attempting to
prove error predicated on the failure to grant a mistrial, especially when an objec-
tion or motion to strike the allegedly improper material was sustained and the
jury was admonished to disregard such material.
Appeal from the district Court for Lancaster County, steven
d. burns, Judge, on appeal thereto from the County Court
for Lancaster County, laurie yardley, Judge. Judgment of
district Court affirmed.
dennis R. keefe, Lancaster County Public defender, and
John C. Jorgensen for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
H eavican, 	c.J., 	WrigHt, 	connolly, 	gerrard, 	stepHan,
mccormack , and miller-lerman, JJ.
gerrard, J.
Jacob J. daly was convicted at a jury trial of, among other
things, operating a motor vehicle while under the influence of
marijuana.1 The primary issue presented in this appeal is the
1 See Neb. Rev. Stat. § 60-6,196 (Reissue 2004).
906 	278 NEBRASkA REPORTS

admissibility of a police officer’s opinion that daly was under
the influence of drugs while operating his vehicle. We conclude
that the officer’s opinion was properly admitted, and we affirm
daly’s convictions and sentences.
I. BACkGROUNd
The vehicle daly was driving was stopped after Lincoln
police officer Christopher Monico observed daly’s car oper-
ating without a headlight. Monico smelled burnt marijuana,
and he observed that daly’s eyelids were drooping and that
his eyes were watery and bloodshot. daly admitted to having
smoked marijuana earlier that day and gave Monico permission
to search the vehicle. Monico found, among other things, plas-
tic bags that contained rolling paper, a small scale, and trace
amounts of marijuana.
Monico summoned Officer Jesse Hilger, who had completed
instruction as a “drug recognition expert” (dRE). After Hilger
arrived, Monico conducted field sobriety tests. daly’s results
were mixed, and Monico concluded that daly was unable to
safely operate a motor vehicle. daly was arrested, and Hilger
conducted further drug tests pursuant to standardized dRE pro-
tocol. A chemical breath test gave no indication that daly was
under the influence of alcohol, but evidence of marijuana use
was found in daly’s urine.
daly was charged by complaint with one count of driving
under the influence (dUI), one count of possession of 1 ounce
or less of marijuana, and one count of possession of drug para-
phernalia. daly filed a pretrial Daubert/Schafersman2 motion
to determine the admissibility of the State’s opinion that daly
had been under the influence of a drug. After an extensive
hearing, the county court overruled daly’s motion, and the
matter proceeded to a jury trial. Hilger testified at trial to his
opinion, based upon daly’s poor coordination and matrix of
physical symptoms, that daly’s marijuana usage had impaired
him to the point that he was unable to operate a motor vehicle
2 See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001).
STATE v. dALy 	907
Cite as 278 Neb. 903

safely. daly was convicted on all charges and appealed his
dUI conviction to the district court, which affirmed the county
court’s judgment.
II. ASSIGNMENTS OF ERROR
daly assigns, consolidated and restated, that the trial court
erred in the following respects:
(1) Overruling his motion in limine and objection to the
admissibility of Hilger’s dRE testimony.
(2) Allowing, at the pretrial Daubert/Schafersman hearing,
expert testimony from several witnesses who testified regarding
the dRE protocol. Generally, daly argues that these witnesses
were not qualified to offer the testimony that the trial court
accepted for purposes of the Daubert/Schafersman hearing.
(3) Allowing, at the pretrial Daubert/Schafersman hearing,
several exhibits that were supporting materials for the testi-
mony of the witnesses to whom daly also objected.
(4) Refusing daly’s offer of the resume of Gregory Cody,
and refusing to receive cross-examination testimony of Cody
and darrell Fisher, at the pretrial Daubert/Schafersman hearing.
The trial court held a consolidated hearing relating to several
dUI cases. Because the State proffered Cody’s and Fisher’s
testimony in another case, not daly’s, the court rejected daly’s
proffer of evidence relating to their testimony.
(5) Taking the State’s offer of two particular exhibits under
advisement, but never ruling on the offer or daly’s objections
to the exhibits.
(6) Overruling daly’s motion for further “findings of fact” in
association with the overruling of his motion in limine.
(7) Overruling daly’s motion to strike a juror for cause
because the juror, a parole officer, was an employee of the
State of Nebraska.
(8) Initially overruling his Neb. Evid. R. 4043 objection to
the admission of the scale found in daly’s car and then, after
reconsidering the objection and excluding the evidence, deny-
ing his motion for mistrial.
3 Neb. Rev. Stat. § 27-404 (Reissue 2008).
908 	278 NEBRASkA REPORTS

(9) Overruling a motion for mistrial that daly claims he
made during closing argument.
(10) Overruling daly’s motion for new trial and committing
cumulative error.
III. STANdARd OF REvIEW
[1-3] In proceedings where the Nebraska Evidence Rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.4 The standard for reviewing the admissibility of expert
testimony is abuse of discretion.5 An abuse of discretion occurs
when a trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against jus-
tice or conscience, reason, and evidence.6
Iv. ANALySIS
1. D aubert/S chaferSman reliability of
H ilger’s dre testimony
daly’s principal contention on appeal is that the court erred
in permitting Hilger to testify that in his opinion, daly was
impaired by the use of marijuana. This contention primarily
rests on two general contentions—first, that the dRE protocol
is unreliable, and second, that Hilger’s training and experience
with the dRE protocol did not provide sufficient foundation for
him to render an expert opinion. And daly makes several other
arguments about the conduct of the Daubert/Schafersman hear-
ing. We address daly’s arguments in turn.
(a) dRE Protocol
The dRE program is a nationally standardized protocol
for identifying drug intoxication based upon a program first
designed by the Los Angeles Police department. The proto-
col is designed to identify seven different categories of drugs
and the physical symptoms associated with each category. For
4 State v. Edwards, ante p. 55, 767 N.W.2d 784 (2009).
5 Id.
6 Id.
STATE v. dALy 	909
Cite as 278 Neb. 903

example, the behavioral symptoms associated with marijuana
intoxication are
impaired attention, impaired attention spans, forgetting to
do things, forgetting [things] in mid-sentence . . . ; inap-
propriate euphoria, such as laughing or smiling during an
incident that’s fairly serious; an impaired ability to divide
attention, to do more than one thing at the same time,
maybe concentrating on colors or lights rather than the
overall environment.
Symptoms also include bloodshot eyes; an elevated heart rate;
and sometimes, body tremors. Under the dRE protocol, offi-
cers are trained in a step-by-step procedure to examine various
clinical or physiological indicators to determine what drugs a
suspect might have used.
A field dRE examination generally involves making three
determinations: first, that a person is impaired and that the
impairment is not consistent with alcohol intoxication; sec-
ond, the ruling in or out of medical conditions that could be
responsible for the signs and symptoms; and third, what type
of drug is responsible for the impairment. The process is sys-
tematic and standardized. A dRE officer uses a “face sheet” to
record his or her observations—a standardized form with pre-
pared entries for the various tests and observations the officer
must perform.
The process begins with a breath alcohol test; then, if
the dRE officer is not the arresting officer, the dRE officer
interviews the arresting officer about the circumstances of the
arrest and the suspect’s behavior. The dRE officer then con-
ducts the preliminary examination. The dRE officer checks
the suspect’s pulse, does an initial check of the nystagmus
(involuntary jerking movements) of the eyes, and checks the
suspect’s pupil size. And a series of medical questions is typi-
cally asked.
Assuming that the suspect appears to be under the influence
of drugs and no medical condition is present, the dRE officer
proceeds to conduct an eye examination. The officer adminis-
ters horizontal and vertical gaze nystagmus tests in each eye,
and checks for a lack of convergence, or the eye’s ability to
converge on an object approaching the face. The next step is
910 	278 NEBRASkA REPORTS

to conduct the “divided attention” tests, composed of four dif-
ferent tests that are similar to familiar field sobriety tests. The
suspect is asked to estimate a period of time while balancing in
a particular way, perform a “walk-and-turn” or “walk-the-line”
test, perform a one-leg stand test, and perform a “finger-to-
nose” test.
The dRE officer then conducts a vital signs examination.
The officer rechecks the suspect’s pulse and measures the
suspect’s body temperature and blood pressure. Then the offi-
cer conducts a “dark room examination,” during which the
suspect’s pupils are examined under different light conditions.
After that, the officer uses a penlight to examine the suspect’s
mouth and nose for debris, drugs, or physiological changes that
can take place with repeated drug use. The next step is a check
for muscle tone—the officer evaluates the suspect’s voluntary
muscles to see if they are abnormally rigid or flaccid. The offi-
cer then checks for injection sites and takes the suspect’s pulse
again. Finally, the examination concludes with an interview of
the suspect.
When the examination is concluded, the dRE officer forms
an opinion based on his or her observations. Then, the final
step in the process is the use of toxicology to analyze samples
taken from the suspect for the presence of drugs.
In other words, the underlying principles of the dRE proto-
col are basic and familiar: Gather information from the suspect
and measure fundamental physical symptoms and then derive
a conclusion about drug or alcohol intoxication from that data.
dr. Zenon Zuk testified for the State that the dRE protocol is
based on the well-established concept that drugs cause observ-
able signs and symptoms, affecting vital signs and changing
the physiology of the body.
A 1984 study, conducted by the Johns Hopkins University
School of Medicine in conjunction with the National Highway
Traffic Safety Administration, concluded that under laboratory
conditions, the dRE protocol
showed a high degree of accuracy in correctly identifying
the drug classes which had been administered to those
subjects judged to be intoxicated. Of subjects judged to be
intoxicated the correct drug class was identified on 91.7%
STATE v. dALy 	911
Cite as 278 Neb. 903

of occasions. Overall, in 98.7% of instances of judged
intoxication the subject had received some active drug.
On 7% of occasions of judged intoxication the incorrect
drug class was identified, and on 1.3% of occasions the
subject had received no active drug . . . .
A field study conducted by the Los Angeles Police department
and the National Highway Traffic Safety Administration found
that when dRE’s claimed drugs other than alcohol were pres-
ent, they were detected in blood tests 94 percent of the time. A
study performed by the State of Minnesota from 1991 to 1993
found that at least one dRE-predicted drug category was pres-
ent in 84.5 percent of cases and that the protocol for detecting
cannabis intoxication was the most reliable, corroborated by
toxicology in 91.8 percent of cases. And a 1994 study per-
formed by the State of Arizona found that dRE decisions were
“highly accurate” and that the dRE program, supported by the
toxicology laboratory, was “a valid method for detecting and
classifying drug-impaired individuals.”
[4] Based largely on that data, every court to have considered
the issue has concluded that testimony based upon the dRE
protocol is admissible into evidence.7 In Nebraska, our analysis
of the issue is governed by the principles announced by the U.S.
Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
Inc., and adopted by this court in Schafersman v. Agland
Coop.8 Under our Daubert/Schafersman jurisprudence, the trial
court acts as a gatekeeper to ensure the evidentiary relevance
and reliability of an expert’s opinion. This gatekeeping func-
tion entails a preliminary assessment whether the reasoning
or methodology underlying the testimony is valid and whether
7 See, U.S. v. Everett, 972 F. Supp. 1313 (d. Nev. 1997); State v. Baity,
140 Wash. 2d 1, 991 P.2d 1151 (2000); Mace v. State, 328 Ark. 536, 944
S.W.2d 830 (1997); State v. Klawitter, 518 N.W.2d 577 (Minn. 1994);
Wooten v. State, 267 S.W.3d 289 (Tex. App. 2008); State v. Aleman, 145
N.M. 79, 194 P.3d 110 (N.M. App. 2008), cert. denied 145 N.M. 255,
195 P.3d 1267; State v. Kanamu, 107 Haw. 268, 112 P.3d 754 (Haw. App.
2005); State v. Sampson, 167 Or. App. 489, 6 P.3d 543 (2000); Williams v.
State, 710 So. 2d 24 (Fla. App. 1998).
8 See, Daubert, supra note 2; Schafersman, supra note 2.
912 	278 NEBRASkA REPORTS

that reasoning or methodology properly can be applied to the
facts in issue.9
[5] In determining the admissibility of an expert’s testimony,
a trial judge may consider several more specific factors that
might bear on a judge’s gatekeeping determination. These fac-
tors include whether a theory or technique can be (and has
been) tested; whether it has been subjected to peer review and
publication; whether, in respect to a particular technique, there
is a high known or potential rate of error; whether there are
standards controlling the technique’s operation; and whether
the theory or technique enjoys general acceptance within a
relevant scientific community. These factors are, however, nei-
ther exclusive nor binding; different factors may prove more
significant in different cases, and additional factors may prove
relevant under particular circumstances.10
(i) Persuasiveness of Supporting
Studies/Risk of Error
daly makes several arguments with respect to the reliability
of the dRE protocol. His primary argument seems to be that
the studies mentioned above were not peer reviewed and were
methodologically flawed. daly contends that other studies,
suggesting that the dRE protocol is less reliable, were peer
reviewed and used more sound methodology.
[6] To begin with, we note that although daly attacks
the credibility of the literature supporting the reliability of
the dRE protocol, he cannot contest its existence.11 And we
have observed that a court performing a Daubert/Schafersman
inquiry should not require absolute certainty.12 Instead, a trial
court should admit expert testimony if there are good grounds
for the expert’s conclusion, even if there could possibly be
9 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
10 State v. Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004). See,
also, King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762
N.W.2d 24 (2009).
11 See Sampson, supra note 7.
12 King, supra note 10.
STATE v. dALy 	913
Cite as 278 Neb. 903

better grounds for some alternative conclusion.13 And as other
courts have noted, the research validating the dRE protocol has
been carefully scrutinized at scientific conferences, conven-
tions, workshops, and other forums for the exchange of ideas
among those interested in the physiological consequences of
drug use.14 The reason that peer-reviewed publication is valu-
able is that it places research in the public domain and permits
evaluation and criticism. Although not always published in a
peer-reviewed journal per se, dRE research has been the sub-
ject of considerable scientific scrutiny.15 As the court in U.S.
v. Everett16 observed, “These writings began in the late 1970’s
and have continued to the present. The use of the protocol and
its various elements has certainly not been kept a secret nor
is there evidence that its proponents have attempted to avoid
the limelight.”
Nor are the studies that daly depends upon as dispositive as
he asserts. The feature of those studies upon which he relies—
their blind design—has been criticized by others as a funda-
mental flaw in their methodology.17 daly refers us primarily to
studies conducted by Stephen J. Heishman and his colleagues
from 1996 to 1998.18 daly suggests that the Heishman studies
indicated at best a 51-percent success rate for dRE accuracy
and indicated a success rate of only 44 percent when alcohol-
only decisions were excluded.19
But in order to make those studies “blind,” the dRE protocol
was used incompletely. The dRE examiners did not question
13 See id.
14 See, Everett, supra note 7; Aleman, supra note 7.
15 See Aleman, supra note 7.
16 Everett, supra note 7, 972 F. Supp. at 1324.
17 See, id.; Sampson, supra note 7; Williams, supra note 7.
18 See, Stephen J. Heishman et al., Laboratory Validation Study of Drug
Evaluation and Classification Program: Alprazolam, d-Amphetamine,
Codeine, and Marijuana, 22 J. Analytical Toxicology 503 (1998); Stephen
J. Heishman et al., Laboratory Validation Study of Drug Evaluation and
Classification Program: Ethanol, Cocaine, and Marijuana, 20 J. Analytical
Toxicology 468 (1996).
19 See id.
914 	278 NEBRASkA REPORTS

subjects about recent drug use, nor did they interrogate the
subjects to solicit admissions about drug use. Nor was evidence
from the arrest available. This means that the blind studies
could not realistically predict the scientific reliability of the
dRE program in the field because they examined an abbrevi-
ated evaluation that is different from the standardized protocol
that is actually used.20
As the Everett court observed, this “defies the centuries old
practice of physicians to take a history of patients in connec-
tion with a physical examination.”21 To remove that aspect of
the protocol does not provide an accurate test of the protocol
itself. Simply put, the fact that suspects may admit to using
drugs or may have drug paraphernalia on their persons does
not make a protocol that includes those facts less reliable as a
diagnostic tool. And more to the point, when the issue is the
reliability of the complete dRE protocol as a diagnostic tool
for law enforcement officers in the field, the county court did
not abuse its discretion in being more persuaded by studies that
actually measured the reliability of the complete protocol under
field conditions.
We also note that even the 1998 Heishman study concluded
that the dRE protocol “is a valid test to identify recent drug
use.”22 That study also found that when dRE evaluations were
inconsistent with toxicological testing, false negatives were
substantially more likely than false positives, including with
respect to marijuana use.23 And even using an incomplete
protocol, “dREs are able to detect drug-induced impairment
in general,” even when they have difficulty discriminating
between various drugs.24
In other words, to the extent the Heishman studies indi-
cate a higher rate of error than the studies relied upon by the
State, that risk is mitigated by the fact that an erroneous dRE
20 See Williams, supra note 7. See, also, Everett, supra note 7.
21 Everett, supra note 7, 972 F. Supp. at 1322.
22 Heishman et al., supra note 18 at 513.
23 See id.
24 See id.
STATE v. dALy 	915
Cite as 278 Neb. 903

evaluation will probably err on the side of the suspect.25 The
risk of a false positive is low. Any risk is mitigated further by
the fact that identifying the specific drug that caused a driver’s
impairment is inessential—the dUI statute only requires proof
that the defendant was under the influence of “any drug” and
does not require the drug to be identified by the arresting offi-
cer.26 And finally, we note that the final step in the dRE proto-
col is the use of chemical testing to confirm the officer’s evalu-
ation. In the end, it was not an abuse of discretion to conclude
that the available scientific literature supported the admission
of dRE-based testimony.
(ii) General Acceptance in Scientific Community
daly also argues that the dRE protocol is not generally
accepted in the scientific community. To support this argu-
ment, daly contends that because the dRE protocol is a tech-
nique based upon the human body’s reaction to drugs, “the
relevant scientific community must include Pharmacologists,
Neurologists, Toxicologists, Behavioral Research Psychologists,
Forensic Specialists, and Medical doctors concerned with the
recognition of alcohol and drug intoxication.”27 And daly sug-
gests that the dRE protocol as a whole is the single “theory or
technique” that must be generally accepted.
But the dRE protocol, while based in scientific principles, is
a program designed to meet the specific needs of law enforce-
ment. The medical community would rely on toxicological
testing, because medical diagnosis and treatment require nei-
ther evaluation of a patient’s impairment at a particular time
nor probable cause to perform a chemical test. And scientists
interested in the effects of drugs on the human body would test
those effects under controlled conditions, rather than collect-
ing research subjects out of motor vehicles. In other words,
the dRE program as a whole cannot be evaluated based on
25 See, Everett, supra note 7; Sampson, supra note 7; Williams, supra note 7.
Cf. Aleman, supra note 7.
26 See, § 60-6,196; State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
27 Brief for appellant at 35.
916 	278 NEBRASkA REPORTS

whether it is used in the scientific community, because it is
uniquely tailored to the exigencies of law enforcement.
Instead, the relevant question is whether the tests that make
up the protocol are generally accepted. In that regard, Zuk tes-
tified that each step in the dRE protocol reflected techniques
that were accepted in the medical community for diagnostic
purposes and were either consistent with the medical commu-
nity’s method of performing those examinations or based on
a sound understanding of the central nervous system. And as
previously noted, the entire protocol is based on the generally
accepted principle that drugs affect vital signs and change the
physiology of the body.
Nonetheless, daly takes issue with several of the particular
components of the dRE protocol. He argues, for instance, that
nystagmus testing is an unreliable gauge of a suspect’s impair-
ment. He argues that several of the physical sobriety tests have
not been proved reliable. And he takes particular issue with
the examination of a suspect’s mouth and nose for evidence of
drug use.
We have, however, previously held that nystagmus testing is
generally accepted in the relevant scientific community as an
indicator of impairment, although that result standing alone is
insufficient to support a conviction for dUI.28 It is also within
the expertise of a veteran police officer to have observed that
repeated drug use can have physical manifestations such as
scarring or discoloration around the mouth. And the variables
that could account for anomalous results on any one aspect of
the dRE examination are precisely why the protocol exists—to
promote a systematic approach that considers a number of dif-
ferent factors.29 The issue is not whether any single observation
is reliable enough to be dispositive—instead, it is whether an
opinion based upon all of the relevant observations is reliable
enough to be admissible. And, as discussed above, the scien-
tific literature supports the conclusion that it is.
In sum, we conclude that the county court did not abuse
its discretion in concluding that the dRE protocol was a
28 See State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000).
29 See, Everett, supra note 7; Klawitter, supra note 7.
STATE v. dALy 	917
Cite as 278 Neb. 903

sufficiently valid methodology to support Hilger’s opinion
testimony.
(b) Expert Witness Testimony
daly makes several arguments with respect to the testimony
of the State’s various expert witnesses. Primarily, of course, he
focuses on Hilger’s opinion testimony. So we begin by examin-
ing the standards for training a dRE.
(i) Hilger’s DRE Training and Opinion Testimony
The first step in training a dRE officer is a 2-day pre-
liminary training program, called “preschool,” which prepares
students for the more rigorous training to follow. dRE school
itself involves 7 days of classroom instruction, including lec-
tures on physiology and toxicology, specific training on the
effects of particular drugs, hands-on exercises in implement-
ing the dRE procedure and interpreting the results, and oral
and written examinations. Finally, the certification phase of
the training requires students to apply the training in real-
world settings on actual suspects under the supervision of a
dRE instructor. For a student to be certified, a minimum of
12 evaluations must be completed, involving at least three dif-
ferent categories of drug, and verified by toxicology in at least
75 percent of the cases. At least two different dRE instructors
must approve and recommend the student for certification.
Certification requires the student to pass a comprehensive,
3- to 4-hour final examination. And continuing education is
required to maintain certification.
The record establishes that Hilger had been trained in accord-
ance with national standards. And Hilger testified that he per-
formed the dRE protocol as he had been trained to do. daly
does not argue on appeal that Hilger performed the protocol
deficiently. Instead, daly simply asserts that a police officer is
not qualified to opine on drug intoxication, because a police
officer is not a medical doctor or other expert in “drugs, the
eyes, vital signs, psychomotor capabilities, symptomology of
drugs, [or] human physiology.”30
30 Brief for appellant at 30.
918 	278 NEBRASkA REPORTS

But in this case, Hilger was not asked to opine as to why or
how daly’s use of marijuana caused symptoms of intoxication.
It is well established, for instance, in the context of alcohol
intoxication, that sufficient foundation may be laid for a police
officer to testify to his or her opinion that a driver was under
the influence of alcohol.31 In that context, acceptable founda-
tion includes training to detect the physical and mental effects
of alcohol, experience in doing so, and the officer’s account
of the procedures undertaken to evaluate the driver’s intoxi-
cated condition.32 This is because a police officer need neither
explain nor know why consumption of alcohol causes certain
symptoms in order to be able to identify those symptoms and
reach a conclusion based upon them.
[7] daly offers us no persuasive basis to distinguish drug
intoxication, other than taking issue with the substance of the
officer’s training and procedures. But we conclude that a law
enforcement officer with the training and experience offered
by dRE certification is sufficiently qualified to testify, based
on his or her evaluation, that a suspect was under the influence
of drugs. Hilger had successfully completed dRE training, and
his opinion was admissible.
[8,9] In a related contention, daly claims that there is a dif-
ference between intoxication and impairment and that Hilger
should not have been permitted, based on a dRE examination,
to testify that daly’s ability to drive was impaired. We have
said that as used in § 60-6,196, the phrase “under the influence
of alcoholic liquor or of any drug” requires the ingestion of
alcohol or drugs in an amount sufficient to impair to any appre-
ciable degree the driver’s ability to operate a motor vehicle in a
prudent and cautious manner.33 And we have held that whether
impairment is caused by alcohol or drugs, a conviction for dUI
may be sustained by either a law enforcement officer’s obser-
vations of a defendant’s intoxicated behavior or the defendant’s
31 See, State v. Howard, 253 Neb. 523, 571 N.W.2d 308 (1997); State v. Dail,
228 Neb. 653, 424 N.W.2d 99 (1988).
32 See id.
33 See, Falcon, supra note 26; State v. Green, 238 Neb. 328, 470 N.W.2d 736
(1991).
STATE v. dALy 	919
Cite as 278 Neb. 903

poor performance on field sobriety tests.34 The court did not err
in permitting Hilger to testify, based upon his observation of
daly and his law enforcement experience, that daly’s ability to
drive was impaired.
daly also contends that the dRE protocol is flawed because
it depends on police officers, who he argues are inadequately
trained to implement the protocol. And daly argues that there is
no data to show “inter-rater reliability,”35 which we understand
to refer to the ability of different dRE’s to successfully apply
the protocol. But the qualifications of the officers applying
the protocol do not bear on the validity of the protocol itself.
Instead, the question is simply whether Hilger, the dRE officer
who actually tested daly and testified at trial, was qualified to
render his opinion about daly. In that regard, daly contends
that the dRE training program offers insufficient training in
the dRE protocol.
[10-12] But there is no exact standard for fixing the quali-
fications of an expert witness, and a trial court is allowed dis-
cretion in determining whether a witness is qualified to testify
as an expert.36 Unless the court’s finding is clearly erroneous,
such a determination will not be disturbed on appeal.37 Experts
or skilled witnesses will be considered qualified if they pos-
sess special skill or knowledge respecting the subject matter
involved superior to that of persons in general, so as to make
the expert’s formation of a judgment a fact of probative value.38
And a witness may qualify as an expert by virtue of either
formal training or actual practical experience in the field.39 We
find no clear error in the trial court’s conclusion that by virtue
of his dRE training and experience, Hilger was qualified as an
expert in the recognition of drug intoxication.
34 See id.
35 Brief for appellant at 40.
36 See Norman v. Ogallala Pub. Sch. Dist., 259 Neb. 184, 609 N.W.2d 338
(2000).
37 Id.
38 See Vilcinskas v. Johnson, 252 Neb. 292, 562 N.W.2d 57 (1997).
39 Crawford v. Department of Motor Vehicles, 246 Neb. 319, 518 N.W.2d 148
(1994).
920 	278 NEBRASkA REPORTS

daly asserts, in passing, that foundation for Hilger’s opinion
was lacking because there was no video recording showing
that Hilger’s evaluation was performed correctly. But Hilger
testified about his evaluation of daly and was available for
cross-examination about whether the evaluation was performed
adequately. Such matters as whether vital signs were measured
accurately are appropriate subjects for cross-examination. A
video recording of the evaluation was not necessary for Hilger’s
testimony to be admissible.
daly also argues briefly that “[t]he State has asserted a defi-
nition of ‘drug’ as generally being a chemical substance taken
into the human body that impairs the ability to operate a motor
vehicle safely” and that “[t]his definition is too broad.”40 This
is apparently a reference to Hilger’s testimony, during which
he described the range of substances that the dRE protocol is
designed to detect. But daly did not object to that testimony at
trial. And whatever a “drug” might be for purposes of the dRE
protocol, it is not disputed that the only drug at issue here was
marijuana, which is clearly a drug within the meaning of both
the dRE protocol and the dUI statute.41
[13] Finally, daly argues that Hilger’s testimony should have
been excluded under Neb. Evid. R. 403,42 which provides that
“[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair preju-
dice . . . .” The fact that evidence is prejudicial is not enough
to require exclusion under rule 403, because most, if not all, of
the evidence a party offers is calculated to be prejudicial to the
opposing party; it is only the evidence which has a tendency
to suggest a decision on an improper basis that is unfairly
prejudicial under rule 403.43 Hilger’s testimony was relevant to
whether daly was operating his vehicle under the influence of
marijuana, and his opinion suggested a decision on that basis.
40 Brief for appellant at 47.
41 See, Neb. Rev. Stat. § 28-405 (Reissue 2008); § 60-6,196; Falcon, supra
note 26.
42 Neb. Rev. Stat. § 27-403 (Reissue 2008).
43 See Robinson, supra note 9.
STATE v. dALy 	921
Cite as 278 Neb. 903

It was not unfairly prejudicial, and the court did not abuse its
discretion in admitting it.
(ii) Expert Witnesses at daubert/Schafersman Hearing
daly also argues that the State’s other experts should not
have been permitted to testify at the Daubert/Schafersman
hearing. His arguments present something of a moving target:
He seems to be contending that the police officer who helped
develop the dRE protocol should not have been permitted to
testify because he was not a medical expert; an optometrist
should not have been permitted to testify because he was not
a medical doctor; Zuk, a medical doctor, should not have been
permitted to testify because he was not a specialist; and a toxi-
cologist should not have been permitted to testify because she
was not an expert on impaired driving.
But each witness testified to relevant issues that were within
their competence. Thomas Page, the police officer who helped
develop the dRE protocol, testified about how the protocol was
developed, the steps involved, and the literature that supports
its validity. karl Citek, an optometrist and associate professor,
has a degree in physics from Columbia University and a doc-
tor of optometry degree and a master of science and Ph.d. in
vision science from the State University of New york College
of Optometry. Citek coauthored two journal articles about the
use of nystagmus testing to detect impairment in drivers,44 and
he testified about nystagmus observation and its use in detect-
ing impairment. Michelle Spirk, a forensic toxicologist, testi-
fied about the physiological effects of marijuana intoxication,
specifically on the ability to operate a motor vehicle. And as
described above, Zuk testified as a medical doctor about the
medical validity of the steps in the dRE protocol.
[14,15] The witnesses’ testimony was sufficiently related to
their research and experience. Furthermore, a trial court has
broad discretion in determining how to perform its gatekeeper
44 See, karl Citek et al., Nystagmus Testing in Intoxicated Individuals, 74
Optometry 695 (2003); Edward M. kosnoski et al., The Drug Evaluation
Classification Program: Using Ocular and Other Signs to Detect Drug
Intoxication, 69 J. Amer. Optometric Assn. 211 (1998).
922 	278 NEBRASkA REPORTS

function,45 and we presume in the absence of anything to the
contrary that a trial court considered only competent and rele-
vant evidence in rendering a decision.46 Given the nature and
scope of the pretrial hearings, we cannot find that the trial
court abused its discretion in permitting the witnesses to testify.
The trial court was certainly capable of determining the effect
the witnesses’ qualifications should have on the weight to be
afforded their testimony, and we find no abuse of discretion in
the court’s conclusions.
daly also argues that Thomas Schwarten, a dRE instructor
with the Nebraska State Patrol, should not have been permitted
to testify about Hilger’s dRE certification and proficiency. But
the ultimate issue to be determined at the Daubert/Schafersman
hearing was whether Hilger’s dRE training qualified him to
testify that daly was under the influence of drugs. Schwarten
was qualified to testify as an expert in dRE instruction, and his
testimony about Hilger’s training, and successful completion of
that training, was relevant.
(c) Evidentiary Issues at Daubert/Schafersman Hearing
(i) Field Sobriety Test Studies
daly also objected to several exhibits that were entered
into evidence at the Daubert/Schafersman hearing. First, daly
complains about “Exhibits 20 through 26,” which he describes
as “validation studies in regards to standardized field sobriety
tests.”47 (Exhibit 20 does not fit this description; we assume
that its inclusion in this argument is merely a typographical
error in daly’s brief.) daly argues that
[w]ith the question being the admissibility of the dRE
program protocols and/or testimony derived therefrom due
to the qualities of proffering a medical diagnosis on the
basis of vital sign examination, pupillary examinations,
and or toxicology—the basis upon which there may have
45 See State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).
46 See, e.g., Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
47 Brief for appellant at 51.
STATE v. dALy 	923
Cite as 278 Neb. 903

been research in regards to Horizontal Gaze Nystagmus,
the Walk and Turn, the One Leg Stand, is irrelevant.48
[16] This argument is not entirely clear to us. Because stan-
dard field sobriety tests are included in the dRE protocol, sci-
entific examination of those tests would be relevant. And Page
referred to the studies as part of the basis for his testimony
regarding the dRE protocol. We find no merit to daly’s asser-
tion that the evidence was irrelevant. daly also argues that the
evidence was hearsay. But the evidence was used as foundation
for Page’s testimony and was admissible to show the basis for
his opinion.49 Finally, daly argues that the evidence violated
his rights under the Confrontation Clause.50 He waived this
ground for his objection by not raising it in the trial court.51
And in any event, it is well established that Confrontation
Clause rights are trial rights that do not extend to pretrial hear-
ings in state proceedings.52
(ii) Demonstrative Exhibits
daly objected to the admission at the Daubert/Schafersman
hearing of exhibit 30, a PowerPoint presentation that was used
as a demonstrative exhibit during Citek’s testimony. Citek gen-
erally testified about the effect of drugs on movement of the
eyes. Exhibit 30 included several diagrams, photographs, and
48 Id.
49 See, Neb. Evid. R. 703, Neb. Rev. Stat. § 27-703 (Reissue 2008); Koehler
v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566 N.W.2d 750 (1997);
State v. Simants, 248 Neb. 581, 537 N.W.2d 346 (1995).
50 See U.S. Const. amend. vI.
51 See Robinson, supra note 9.
52 See, Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631
(1987); Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed.
2d 40 (1987); United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39
L. Ed. 2d 242 (1974). See, e.g., State v. Timmerman, 218 P.3d 590 (Utah
2009); State v. Rivera, 144 N.M. 836, 192 P.3d 1213 (2008); Gresham
v. Edwards, 281 Ga. 881, 644 S.E.2d 122 (2007); State v. Woinarowicz,
720 N.W.2d 635 (N.d. 2006); Sheriff v. Witzenburg, 122 Nev. 1056, 145
P.3d 1002 (2006); Whitman v. Superior Court (People), 54 Cal. 3d 1063,
820 P.2d 262, 2 Cal. Rptr. 2d 160 (1991); State v. Sherry, 233 kan. 920,
667 P.2d 367 (1983); Mitchell v. State, 84 Wis. 2d 325, 267 N.W.2d 349
(1978).
924 	278 NEBRASkA REPORTS

videos illustrating some of the terms and concepts described
during Citek’s testimony, and Citek relied on exhibit 30 for
illustration throughout his testimony.
[17-19] daly argues on appeal that the exhibit was not
relevant and that it was hearsay. But we conclude that it was
admissible as a demonstrative exhibit. demonstrative exhibits
are admissible if they supplement a witness’ spoken description
of the transpired event, clarify some issue in the case, and are
more probative than prejudicial.53 demonstrative exhibits are
inadmissible when they do not illustrate or make clearer some
issue in the case; that is, where they are irrelevant or where
the exhibit’s character is such that its probative value is sub-
stantially outweighed by the danger of unfair prejudice.54 And
a judgment will not be reversed on account of the admission
or rejection of demonstrative evidence unless there has been a
clear abuse of discretion.55
In this case, exhibit 30 provided helpful illustration of
Citek’s detailed medical testimony. No unfair prejudice is
apparent from the record. And the exhibit was not hearsay
because it was not a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evi-
dence to prove the truth of the matter asserted.56 Rather, it was
simply illustrative of Citek’s testimony at the hearing—about
which he was cross-examined—and daly does not contend
that the exhibit did not accurately represent and aid Citek’s
testimony. Thus, we conclude that exhibit 30 was an appropri-
ate illustration of Citek’s testimony and that the county court
did not abuse its discretion by admitting it for purposes of the
Daubert/Schafersman hearing.
daly makes similar arguments with respect to exhibits 41
and 42, which were charts prepared by Spirk listing various
drugs and their physiological effects. For similar reasons, we
also find those arguments to be without merit.
53 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
54 Id.
55 See id.
56 See Neb. Evid. R. 801, Neb. Rev. Stat. § 27-801 (Reissue 2008).
STATE v. dALy 	925
Cite as 278 Neb. 903

(iii) Letter From American Optometric Association
daly 	also 	makes 	relevance, 	hearsay, 	and 	Confrontation
Clause arguments with respect to exhibit 32, a letter containing
a resolution of the American Optometric Association support-
ing horizontal gaze nystagmus as a field sobriety test. But the
only objection made at the Daubert/Schafersman hearing was
that “[t]here’s been no showing that [Citek] was present when
this was made . . . .” Citek testified that he was a member of
the organization, recognized the resolution, and agreed with
it. The court did not abuse its discretion in overruling daly’s
nonspecific objection, and even if it had, the error would have
been harmless.
(iv) Evidence Relating to Cody and Fisher
The Daubert/Schafersman hearing in this case was also
applicable to several other pending cases. Because similar
issues were pending in other cases on the county court’s docket,
the parties stipulated to a consolidated Daubert/Schafersman
hearing. As a result, some evidence was accepted at the pretrial
hearing for some cases, but not for others.
Cody and Fisher were dRE instructors for, respectively, the
city of Lincoln and the Nebraska State Patrol. Cody’s testi-
mony was offered by the State solely with respect to another
case, not daly’s case. Nonetheless, the defense offered Cody’s
resume into evidence in all the consolidated cases, including
daly’s. And the defense argued that Cody’s cross-examination
testimony was relevant in daly’s case as well. Similarly, Fisher
was called as a witness solely with respect to yet another case.
The county court sustained the State’s objections to daly’s
proffered evidence.
On appeal, daly argues that the county court erred in per-
mitting Cody and Fisher to testify as expert witnesses. But
because neither witness’ testimony was admitted in daly’s
case, daly was not aggrieved by the court’s rulings and does
not have standing to object to them on appeal.57
57 See, State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006); Smith v.
Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 N.W.2d 726
(2004).
926 	278 NEBRASkA REPORTS

daly also argues that the court erred in sustaining the State’s
relevance objection to Cody’s resume. Specifically, Cody’s
resume included his “rolling log” of dRE examinations. daly
argues that the rolling log was relevant, because it “could
be utilized in challenging any assertions of margin of error
and/or reliability.”58 But daly has not explained how it could
be utilized to do that. And more to the point, the issue at the
Daubert/Schafersman hearing was the general reliability of the
dRE protocol as a basis for Hilger’s testimony, not the specific
proficiency of another officer who did not even examine daly.
The county court did not abuse its discretion in sustaining the
State’s objection.
daly’s final argument with respect to Cody’s and Fisher’s
testimony is that the court erred in overruling his proffer of
their cross-examination testimony. To begin with, it is not clear
from the record that Fisher’s testimony was offered. daly’s
specific offer of proof referenced the docket number of the case
in which Cody testified, not the case in which Fisher testified.
But regardless, the county court did not abuse its discretion in
excluding the testimony as irrelevant. daly repeats his assertion
that the evidence could be “utilized in challenging any asser-
tions of margin of error, inter-rater and intra-rater reliability.”59
He does not explain how the evidence would support such a
challenge, nor does he explain how such a challenge would be
relevant to the issue presented in daly’s case at the Daubert/
Schafersman hearing.
In short, the county court did not abuse its discretion in
refusing to consider any evidence relating to Cody or Fisher
in daly’s case. daly’s arguments in that regard are with-
out merit.
(v) Failure to Rule on Exhibits 17 and 18
At the conclusion of the Daubert/Schafersman hearing, the
State offered into evidence exhibits 17 and 18—respectively, a
position statement on dRE’s of the Committee on Alcohol and
Other drugs of the National Safety Council and a statement
58 Brief for appellant at 58.
59 Id. at 59.
STATE v. dALy 	927
Cite as 278 Neb. 903

supporting dRE’s from the American Bar Association. daly
objected on several grounds. After some argument, the court
stated that it would “take them under advisement” and “take
a look at what’s already been offered.” But no ruling on the
exhibits appears in the record. daly argues that the court erred
in taking the State’s offer under advisement but never ruling
on the offer or his objections. daly complains that the county
court’s failure to rule on the offer and objections hampers his
ability to claim error on appeal.
[20-22] But the presentation of an adequate record for appel-
late review is primarily the responsibility of the parties.60 It
is well established that a party who fails to insist upon a rul-
ing to a proffered objection waives that objection.61 We have
explained that
“[i]f when inadmissible evidence is offered the party
against whom such evidence is offered consents to its
introduction, or fails to object, or to insist upon a ruling
on an objection to the introduction of the evidence, and
otherwise fails to raise the question as to its admissibility,
he is considered to have waived whatever objection he
may have had thereto, and the evidence is in the record
for consideration the same as other evidence.”62
daly was entitled to rulings on his objections. But because no
request was made for the rulings, daly waived his objections.
His argument on appeal is without merit.
(d) daly’s “Motion for Findings of Fact”
After the county court filed its written ruling that Hilger’s
opinion was admissible, daly filed a “Motion for Findings of
Fact” asking the court for specific rulings on a number of par-
ticular questions. The court denied the motion, and daly claims
on appeal that this was error.
60 R.W. v. Schrein, 264 Neb. 818, 652 N.W.2d 574 (2002).
61 See, State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006); Schrein, supra
note 60.
62 State v. Nowicki, 239 Neb. 130, 134, 474 N.W.2d 478, 483 (1991) (empha-
sis omitted). Accord Schrein, supra note 60.
928 	278 NEBRASkA REPORTS

[23-25] A trial court’s gatekeeping duty requires it to ade-
quately demonstrate by specific findings on the record that it
has performed that duty, because the losing party is entitled to
know that the trial court has engaged in the heavy cognitive
burden of determining whether the challenged testimony was
relevant and reliable and to a record that allows for mean-
ingful appellate review.63 And meaningful appellate review
requires the court to “‘explain its choices’ so that the appellate
court has an adequate basis to determine whether the analyti-
cal path taken by the trial court was within the range of rea-
sonable methods for distinguishing reliable expert testimony
from false expertise.”64 So, we explained in Zimmerman v.
Powell65 that
[a] trial court adequately demonstrates that it has per-
formed its gatekeeping duty when the record shows (1)
the court’s conclusion whether the expert’s opinion is
admissible and (2) the reasoning the court used to reach
that 	conclusion, 	specifically 	noting 	the 	factors 	bear-
ing on reliability that the court relied on in reaching
its determination.
The county court held several pretrial hearings in this case
regarding the dRE protocol and eventually entered an 11-
page order that summarized the history of the dRE protocol,
the process of dRE examination, the evidence presented,
and the court’s findings regarding the reliability of the proto-
col and the admissibility of Hilger’s opinion testimony. The
county court’s order satisfies the requirements articulated
in Zimmerman, demonstrating that the court considered the
issues carefully and conscientiously performed its gatekeep-
ing duty.
daly’s appellate argument consists of repeating the asser-
tions he made in his motion, that certain findings were “nec-
essary,”66 without explaining why they were necessary for the
63 See Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004).
64 Id. at 430, 684 N.W.2d at 9.
65 Id. at 430-31, 684 N.W.2d at 9.
66 Brief for appellant at 62.
STATE v. dALy 	929
Cite as 278 Neb. 903

court to perform its gatekeeping function. For instance, daly
claims that “it was necessary to clarify the appropriate defini-
tion of ‘drug,’” “it was necessary to clarify whether any or
all of the various 12-step protocols and its varied components
collectively and/or individually may be presented regarding
intoxication, impairment, or exposure to a particular class of
drug or alcohol,” and “[i]t was necessary to clarify whether the
dRE protocol(s) are deemed as being subject to a specific mar-
gin of error, and specifically what the Court determined that
margin of error to be.”67
But those findings were not necessary to resolve the issues
presented at the Daubert/Schafersman hearing, nor are they
essential to our appellate review. While daly was entitled to
ask the court for clarification on issues he thought were impor-
tant, he has identified no prejudicial error in the court’s failure
to answer his questions. The court’s findings were more than
sufficient to satisfy its gatekeeping duty. We find no merit to
daly’s argument to the contrary.
2. trial issues
(a) Overruling of Motion to Strike
Juror for Cause
One of the members of the venire was a parole officer
employed by the State of Nebraska department of Correctional
Services. daly moved to strike the parole officer for cause,
taking the position that because he was employed by the
State of Nebraska, he was an employee of a party to the case.
The county court overruled the motion, and daly exercised a
peremptory strike to prevent the parole officer from serving on
the jury.
daly argues that the potential juror should have been stricken
for cause, relying on the Court of Appeals’ holding in Kusek v.
Burlington Northern RR. Co.68 that employees of a party are
ineligible to serve on a jury in a case involving their employer.
67 Id. at 62-63 (emphasis omitted).
68 Kusek v. Burlington Northern RR. Co., 4 Neb. App. 924, 552 N.W.2d 778
(1996).
930 	278 NEBRASkA REPORTS

We question whether the principle stated in Kusek extends to
this situation, in which the parole officer was employed by the
State’s department of Correctional Services, while daly was
prosecuted by the office of the Lancaster County Attorney. But
more importantly, daly has failed to show that he was preju-
diced by the court’s denial of his motion.
[26,27] It is well settled that even the erroneous overruling
of a challenge for cause will not warrant reversal unless it is
shown on appeal that an objectionable juror was forced upon
the challenging party and sat upon the jury after the party
exhausted his or her peremptory challenges.69 We will not
reverse a conviction based on a challenge to a potential juror
if that person was not ultimately included on the jury, even if
the defendant was required to use a peremptory challenge to
remove the person.70
[28] Here, daly argues only that the parole officer should
have been stricken for cause. The parole officer did not sit on
the jury, and daly does not argue that any juror who actually
sat on the panel was objectionable. In other words, daly does
not argue that the jury was not impartial. The true object of
challenges, either peremptory or for cause, is to enable the par-
ties to avoid disqualified persons and secure an impartial jury.
When that end is accomplished, there can be no just ground for
complaint against the rulings of the court as to the competency
of the jurors.71 daly’s complaint in this case is, therefore, with-
out merit.
(b) Rule 404 Objection to Scale
Found in daly’s Car
Before trial, daly moved to exclude the scale found in
daly’s car, based on rule 404. daly argued that the scale was
not relevant to the dUI charge, but would suggest daly was a
69 See State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007). See, also,
Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 173 L. Ed. 2d 320
(2009).
70 Hessler, supra note 69.
71 State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001); State v. Rife, 215
Neb. 132, 337 N.W.2d 724 (1983).
STATE v. dALy 	931
Cite as 278 Neb. 903

repeat drug user. The county court overruled the motion, rea-
soning that the scale was evidence of the use of marijuana in
the car. And at trial, Monico was initially permitted to testify
about the presence of the scale in daly’s car.
But after Monico’s testimony, the court reconsidered and
sustained daly’s objection to the scale. daly moved for a
mistrial, but the court did not declare a mistrial, and instead
instructed the jury that
[p]reviously there was some evidence that a scale had
been received, was received into evidence. At this point
the Court is going to sustain the objection to evidence
regarding that scale and I’m going, at this time, [to] tell
you to disregard that. It is not considered evidence and
you must not consider it.
daly’s first argument on appeal is that the court erred in
admitting the scale into evidence. But the court did not admit
the scale into evidence. Therefore, the issue is whether the
court should have declared a mistrial or whether the court’s
admonition to the jury was sufficient to cure any prejudice
resulting from the mention of the scale.
[29-32] A mistrial is properly granted in a criminal case
where an event occurs during the course of a trial which is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus prevents
a fair trial.72 But a mistrial is not necessarily required if the
resulting prejudice can be cured by an admonition to the jury.73
Error cannot ordinarily be predicated on the failure to grant a
mistrial if an objection or motion to strike the improper mate-
rial is sustained and the jury is admonished to disregard such
material.74 And the decision whether to grant a motion for mis-
trial will not be disturbed on appeal in the absence of an abuse
of discretion.75
72 State v. Mason, 271 Neb. 16, 709 N.W.2d 638 (2006).
73 State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002).
74 See State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
75 See State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).
932 	278 NEBRASkA REPORTS

[33,34] Here, the jury was instructed to disregard the scale.
And even though it is hard to “unring the bell” in certain
instances, absent evidence to the contrary, it is presumed that a
jury followed the instructions given in arriving at its verdict.76
We find nothing in the record in this case to suggest that the
jury could not and did not abide by the court’s admonition in a
matter such as this. A defendant faces a higher threshold than
merely showing a possibility of prejudice when attempting to
prove error predicated on the failure to grant a mistrial, espe-
cially when, as in this case, an objection or motion to strike
the allegedly improper material was sustained and the jury was
admonished to disregard such material.77 daly must prove the
alleged error actually prejudiced him, rather than creating only
the possibility of prejudice.78 He has not done so, and under
these circumstances, the court did not abuse its discretion in
refusing to declare a mistrial.
(c) Alleged Misconduct during Closing Argument
during closing argument, the prosecutor argued that the
dRE protocol was used by a number of government agen-
cies around the world. daly made an objection, and a discus-
sion was held at the bench. Closing argument continued, and
another objection and sidebar followed. No ruling on the objec-
tions is indicated in the record, and no record was made of
either discussion at the bench.
daly now assigns that the court erred in “overruling [his]
Motion for Mistrial regarding the remarks made by the pros-
ecutor in closing argument.” But no corresponding motion for
mistrial appears in the record. Nor was a motion for mistrial
made at the conclusion of the argument.79 Nor does the record
reflect the basis upon which daly’s objections were made.80
76 See State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
77 Robinson, supra note 74.
78 See id.
79 See, Robinson, supra note 9; State v. Jacob, 253 Neb. 950, 574 N.W.2d
117 (1998).
80 See State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
STATE v. dALy 	933
Cite as 278 Neb. 903

As we explained, under comparable circumstances, in State
v. Harris81:
It is incumbent upon an appellant to supply a record
which supports his or her appeal. . . . In this instance,
neither the basis for the objection nor any ruling on the
objection appears in the record. This court has held that
a party who fails to insist upon a ruling to a proffered
objection waives that objection. . . . As the record before
us shows neither the basis for [the defendant’s] objection
nor any ruling on the objection, we conclude that [the
defendant] has waived any error in this regard.
Similarly, the record in this case reflects neither the basis
for daly’s objection nor a ruling on the objection. Nor does the
record show that a motion for mistrial was made or the basis
for such a motion. Under these circumstances, we conclude
that daly has waived any error in this regard.
(d) Motion for New Trial and Cumulative Error
Finally, daly argues that the county court erred in overruling
his motion for new trial and that he was denied a fair trial by
cumulative error. daly’s argument in this regard is dependent
upon the arguments we have already rejected with respect to
his other assignments of error. Therefore, we also find his final
assignments of error to be without merit.
v. CONCLUSION
The county court did not abuse its discretion in permitting
Hilger’s opinion testimony or prejudicially err in any other
regard. The district court did not err in affirming daly’s convic-
tion and sentence for dUI. The judgment of the district court
is affirmed.
affirmed.
81 State v. Harris, 263 Neb. 331, 340, 640 N.W.2d 24, 34 (2002) (citations
omitted).
934 	278 NEBRASkA REPORTS