State v. Prescott

$840,780—more than half of the gross estate—26.43 percent
of the farm was conveyed to the marital trust. Thus, it was not
possible to allocate half the assets of the gross estate to the
marital trust without including part of the farm. Ultimately,
26.43 percent of the farm was reconveyed by Frances to Fritz
and Ellen in equal shares. It was not possible to convey the
farm to Fritz as half of the family trust.
Upon Frances’ death, the assets of the family trust con-
sisted of 73.57 percent of the farm and $117,981 in securities
and other liquid assets. The court ordered that an undivided
half interest in the farm property be allocated to Fritz and
that a half interest in the farm property be allocated to Ellen.
It further ordered that an undivided half interest in all the
remaining assets of the family trust be allocated to Fritz and
Ellen in equal shares. We find no error in this distribution of
the property.
CONCLUSION
Andrez’ intention was to create two trusts upon his death:
the marital trust and the family trust. He also intended to divide
the family trust equally between his and Frances’ two children,
Fritz and Ellen. If possible, Fritz was to receive the farm as
his half interest in the family trust. Because the farm exceeded
half the value of the gross estate, it was not possible for Fritz
to receive the entire farm. The county court did not err in its
division of the trust property. The judgment of the county court
is affirmed.
A ffirmed.
StAte of NebrASkA, Appellee , v.
ryAN t. preScott, AppellANt.
784 N.W.2d 873
Filed June 25, 2010. 	No. S-09-721.
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.
96 	280 NEBrASkA rEpOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

2. Criminal Law: 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. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
4. ____: ____: ____: ____. In reviewing a criminal conviction, an appellate court
does not resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence. Such matters are for the finder of fact.
5. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press based on the Fourth Amendment, an appellate court will uphold its findings
of fact unless they are clearly erroneous. But an appellate court reviews de novo
the trial court’s ultimate determinations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a warrantless search.
6. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a
statute is a question of law, regarding which the Supreme Court is obligated to
reach a conclusion independent of the determination reached by the trial court.
7. Investigative Stops: Motor Vehicles: Probable Cause. Traffic violations, no
matter how minor, create probable cause to stop the driver of a vehicle.
8. Constitutional Law: Search and Seizure: Motor Vehicles. In determining
whether the government’s intrusion into a motorist’s Fourth Amendment interests
was reasonable, the question is not whether the officer issued a citation for a traf-
fic violation or whether the State ultimately proved that violation.
9. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. An officer’s stop of a vehicle is objectively reasonable when the officer
has probable cause to believe that a traffic violation has occurred.
10. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. Once a vehi-
cle is lawfully stopped, a law enforcement officer may conduct an investigation
reasonably related in scope to the circumstances that justified the traffic stop.
11. ____: ____: ____. 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.
12. ____: ____: ____. An officer is required to have only a reasonable, articulable
suspicion that a motorist was driving under the influence in order to expand the
scope of the initial traffic stop and detain him or her for field sobriety tests.
13. Investigative Stops: Police Officers and Sheriffs. Whether a police officer has a
reasonable suspicion based on sufficient articulable facts depends on the totality
of the circumstances.
14. ____: ____. Courts must determine whether reasonable suspicion exists on a
case-by-case basis.
15. Probable Cause: Words and Phrases. reasonable suspicion entails some mini-
mal level of objective justification for detention. It is something more than an
STATE v. prESCOTT 	97
Cite as 280 Neb. 96

inchoate and unparticularized hunch—but less than the level of suspicion required
for probable cause.
16. Drunk Driving: Police Officers and Sheriffs: Testimony. A police officer
may testify to the results of horizontal gaze nystagmus field sobriety testing if
it is shown that the officer has been adequately trained in the administration and
assessment of the test and has conducted the testing and assessment in accord-
ance with that training.
17. Drunk Driving: Blood, Breath, and Urine Tests. To be considered valid, blood
tests under Neb. rev. Stat. § 60-6,197 (reissue 2004) shall be performed pursuant
to methods approved by the Department of Health and Human Services.
18. Drunk Driving: Blood, Breath, and Urine Tests: Appeal and Error. Any defi-
ciencies in the techniques used to test the blood alcohol level in driving under the
influence cases generally are of no foundational consequence, but only affect the
weight and credibility of the testimony.
19. Administrative Law: Drunk Driving: Blood, Breath, and Urine Tests: Words
and Phrases. Under 177 Neb. Admin. Code, ch. 1, §§ 001.16 and 001.21 (2004),
a technique is defined as a set of written instructions which describe the pro-
cedure, equipment, and equipment preventive maintenance necessary to obtain
an accurate alcohol content test result. A method, however, is the name of the
principle of analysis.
20. Indictments and Informations: Pleadings. A motion to quash may be made
in all cases when there is a defect apparent upon the face of the record, includ-
ing defects in the form of the indictment or in the manner in which an offense
is charged.
21. Constitutional Law: Statutes: Pleadings. Ordinarily, one must file a motion
to quash in order to preserve a constitutional challenge to the facial validity of
a statute.
Appeal from the District Court for Hall County, WilliAm
t. Wright, Judge, on appeal thereto from the County Court
for Hall County, philip m. mArtiN, Jr ., Judge. Judgment of
District Court affirmed.
T. Charles James, of Langvardt & Valle, p.C., for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
heAvicAN, 	c.J., 	Wright, 	coNNolly, 	gerrArd, 	StephAN,
mccormAck , and miller-lermAN, JJ.
mccormAck , J.
NATUrE OF CASE
Following a bench trial before the Hall County Court, ryan
T. prescott was found guilty of driving under the influence
98 	280 NEBrASkA rEpOrTS

(DUI). The county court found it to be prescott’s second
offense and sentenced him to 6 months’ probation. prescott
appealed to the Hall County District Court, which affirmed.
prescott then filed this appeal. We granted prescott’s petition
to bypass.
BACkGrOUND
prescott was stopped for speeding at about 8 p.m. on July
31, 2007, in Hall County, Nebraska. Trooper robert Almquist
of the State patrol had visually estimated that prescott was
speeding, then clocked prescott by radar traveling 65 miles per
hour in a 55-mile-per-hour zone.
Upon 	approaching 	prescott’s 	stopped 	vehicle, Almquist
observed a firearm in the vehicle. As such, Almquist had
prescott turn off the vehicle and raise his hands. prescott com-
plied, and Almquist approached closer to get prescott’s license
and registration. At that time, Almquist testified, he detected a
moderate odor of alcohol.
Almquist and prescott then had a seat in Almquist’s patrol
car. During this interaction, Almquist noted a moderate odor
of alcohol coming from prescott’s breath. In addition, after
questioning, prescott admitted that he had not had anything to
eat since 11:30 a.m., that he weighed about 165 pounds, and
that he had been drinking alcohol prior to driving. Specifically,
prescott indicated that he had consumed two beers since leav-
ing work at around 6 p.m. Almquist also learned that prescott
had a prior arrest for DUI.
Almquist then administered three field sobriety tests, as
well as a preliminary breath test (pBT). prescott showed signs
of impairment on the horizontal gaze nystagmus (HGN) test
and the nine-step walk-and-turn test. He then performed the
one-leg stand test as instructed, but failed the pBT. Almquist
placed prescott under arrest and transported him to a hospital
for a blood draw. A sample was drawn and tested. It showed
that prescott had a blood alcohol content of .093 of 1 gram of
alcohol per 100 milliliters of blood.
prescott was charged in Hall County Court with second-
offense DUI. prescott filed a motion to suppress all evidence
seized after the traffic stop. He also alleged in that motion that
STATE v. prESCOTT 	99
Cite as 280 Neb. 96

Neb. rev. Stat. § 60-6,197.04 (reissue 2004) was unconstitu-
tional. The county court denied prescott’s motion to suppress.
A bench trial was then held. prescott was found guilty and was
sentenced to 6 months’ probation. The conviction and sentence
were affirmed on appeal to the Hall County District Court.
prescott now appeals to this court.
ASSIGNMENTS OF ErrOr
On appeal, prescott assigns, restated, that the county court
erred in (1) concluding that there was probable cause to sup-
port the stop of his vehicle; (2) concluding that there was
reasonable suspicion to perform field sobriety tests on him; (3)
concluding that there was probable cause to arrest him, because
the field sobriety tests did not establish impairment; (4) not
finding that the results of the pBT lacked sufficient foundation
to be admissible; and (5) admitting the results of his blood test.
In addition, prescott also assigns that § 60-6,197.04 is uncon-
stitutional on its face and as applied.
STANDArD OF rEVIEW
[1,2] Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error
appearing on the record.1 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.2
[3,4] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for
an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.3 An appellate court does not resolve conflicts
in the evidence, pass on the credibility of witnesses, or reweigh
the evidence. Such matters are for the finder of fact.4
1 State v. Thompson, 278 Neb. 320, 770 N.W.2d 598 (2009).
2 Id.
3 State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009).
4 Id.
100 	280 NEBrASkA rEpOrTS

[5] In reviewing a trial court’s ruling on a motion to sup-
press based on the Fourth Amendment, we will uphold its find-
ings of fact unless they are clearly erroneous.5 But we review
de novo the trial court’s ultimate determinations of reasonable
suspicion to conduct an investigatory stop and probable cause
to perform a warrantless search.6
[6] The constitutionality of a statute is a question of law,
regarding which the Supreme Court is obligated to reach a
conclusion independent of the determination reached by the
trial court.7
ANALYSIS
probAble cAuSe for Stop
Almquist testified that he stopped prescott for speeding,
based on his visual observation, which was confirmed by
radar. In his first assignment of error, prescott contends that
the State did not sufficiently prove that he was speeding and
that thus, probable cause for the stop was not shown. In par-
ticular, prescott argues that under Neb. rev. Stat. § 60-6,192(1)
(reissue 2004), the State failed to show sufficient foundation
to introduce into evidence the radar results allegedly showing
that prescott was speeding.
[7-9] Traffic violations, no matter how minor, create probable
cause to stop the driver of a vehicle.8 In determining whether
the government’s intrusion into a motorist’s Fourth Amendment
interests was reasonable, the question is not whether the offi-
cer issued a citation for a traffic violation or whether the State
ultimately proved that violation.9 Instead, an officer’s stop of a
vehicle is objectively reasonable when the officer has probable
cause to believe that a traffic violation has occurred.10
5 Id.
6 Id.
7 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
8 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
9 See id.
10 Id.
STATE v. prESCOTT 	101
Cite as 280 Neb. 96

In State v. Howard,11 this court was presented with similar
facts. A driver was charged with reckless driving. part of the
case against him was based upon the speeds he was traveling.
We concluded that the State did not need to corroborate the
officer’s testimony regarding the speed of the vehicle where
the charge pending against the driver was not speeding.12 We
find Howard applicable here and conclude that the State did
not need to corroborate Almquist’s testimony that he stopped
prescott for speeding. prescott’s first assignment of error is
without merit.
reASoNAble SuSpicioN to perform
field Sobriety teStS
[10-15] In his second assignment of error, prescott argues
that Almquist lacked reasonable suspicion to perform field
sobriety tests. Once a vehicle is lawfully stopped, a law
enforcement officer may conduct an investigation reasonably
related in scope to the circumstances that justified the traf-
fic stop.13 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 justi-
fied the stop.14 We have further held that an officer is required
to have only a reasonable, articulable suspicion that a motorist
was driving under the influence in order to expand the scope
of the initial traffic stop and detain him or her for field sobri-
ety tests.15 Whether a police officer has a reasonable suspicion
based on sufficient articulable facts depends on the totality of
the circumstances.16 Courts must determine whether reason-
able suspicion exists on a case-by-case basis.17 reasonable
11 State v. Howard, 253 Neb. 523, 571 N.W.2d 308 (1997).
12 See, also, State v. Hiemstra, 6 Neb. App. 940, 579 N.W.2d 550 (1998),
disapproved on other grounds, State v. Trampe, 12 Neb. App. 139, 668
N.W.2d 281 (2003).
13 State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008).
14 Id.
15 Id.
16 Id.
17 See id.
102 	280 NEBrASkA rEpOrTS

suspicion entails some minimal level of objective justification
for detention. It is something more than an inchoate and unpar-
ticularized hunch—but less than the level of suspicion required
for probable cause.18
In this case, Almquist testified that he conducted field sobri-
ety tests after noting a moderate odor of alcohol coming first
from prescott’s vehicle and later from prescott himself. In
addition, Almquist testified that prescott told him that he had
consumed two beers and, further, had not had anything to eat
since lunch that day (the stop was at approximately 8 p.m.).
This was sufficient to provide Almquist with reasonable sus-
picion to conduct field sobriety tests on prescott. prescott’s
second assignment of error is without merit.
eStAbliShmeNt of impAirmeNt by
field Sobriety teStS
In his third assignment of error, prescott assigns that the
field sobriety tests administered to him did not establish that he
was impaired and contends that accordingly, Almquist lacked
probable cause to arrest him. Almquist administered three field
sobriety tests to prescott in advance of a pBT: the HGN test,
the nine-step walk-and-turn test, and the one-leg stand test.
prescott successfully completed the one-leg stand test, but
showed signs of impairment on the other two.
Starting first with the HGN test, prescott argues that Almquist
did not perform the test in keeping with the requirements set
forth in the National Highway Traffic Safety Administration
manual19 detailing the test. In particular, prescott complains
that the manual indicates that the test should take 80 seconds,
but that it did not take Almquist 80 seconds to administer
the test.
[16] This court has held that a police officer may testify to
the results of HGN field sobriety testing if it is shown that the
officer has been adequately trained in the administration and
18 See id.
19 National Highway Traffic Safety Administration, DWI Detection and
Standardized Field Sobriety Testing Student Manual (2006).
STATE v. prESCOTT 	103
Cite as 280 Neb. 96

assessment of the test and has conducted the testing and assess-
ment in accordance with that training.20
In this case, Almquist testified to his training regarding the
HGN test. He explained what the HGN test was and explained
that impaired persons often show an involuntary jerking of the
eye, known as nystagmus. In addition, Almquist explained the
steps he took to administer the test to prescott and testified
that prescott showed four indicators on the test, demonstrating
impairment. This finding of impairment is consistent with the
manual. The manual indicates that with four indicators pres-
ent, it is likely that a person’s blood alcohol concentration is
above .10.
prescott’s argument appears to be without merit. First, it
is not at all clear from the record exactly how long it took
Almquist to perform the test. Nor is there anything in the
record, in particular in the manual, suggesting that the HGN
indicators are not valid if the test did not take 80 seconds to
perform. Finally, the manual itself notes:
The procedures outlined in this manual describe how
the [field sobriety tests] are to be administered under
ideal conditions. We recognize that the [tests] will not
always be administered under ideal conditions in the
field, because such conditions will not always exist. Even
when administered under less than ideal conditions, they
will generally serve as valid and useful indicators of
impairment. Slight variations from the ideal . . . may
have some affect [sic] on the evidentiary weight given to
the results. However, this does not necessarily make the
[tests] invalid.21
We next turn to the nine-step walk-and-turn test. prescott
argues that Almquist could have asked him “proper medical
questions pursuant to his training”22 to establish whether his
“normal gait”23 could have caused him to miss the heel-to-toe
20 State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000).
21 DWI Detection and Standardized Field Sobriety Testing Student Manual,
supra note 19, preface.
22 Brief for appellant at 26-27.
23 Id. at 26.
104 	280 NEBrASkA rEpOrTS

steps during this particular field sobriety test. But prescott
does not argue that he actually does suffer from any abnormal-
ity in his “normal gait.” There is no evidence in the record
that prescott’s inability to successfully complete the nine-step
walk-and-turn test was due to his “normal gait.” Moreover, this
would not affect the admissibility of the test results, but instead
goes to the weight or credibility of this evidence.
prescott’s third assignment of error is without merit.
A dmiNiStrAtioN of pbt
In his fourth assignment of error, prescott argues that
there was insufficient foundation to support the admissibility
of the results of the pBT. He further contends that without
these results, Almquist lacked probable cause to arrest him
for DUI.
prescott first argues that the breath testing device used to
perform the pBT on prescott was not an approved device
under the pertinent regulations. Specifically, to be approved,
a device must use fuel cell analysis, but Almquist did not tes-
tify that the particular model he used had such analysis. And
while a review of Almquist’s testimony reveals that he did not
specifically testify that the device used had fuel cell analysis,
the record does show that Almquist testified that he followed
title 177 of the Nebraska Administrative Code24 in administer-
ing the pBT. prescott did not rebut this claim. We conclude
that this testimony is sufficient to support the introduction of
this evidence.25
prescott also asserts that there was insufficient evidence
that the device had been properly calibrated. But Almquist
testified that it was calibrated as required under title 177 and
that he confirmed this fact prior to administering the pBT
to prescott.
prescott next contends that the State failed to offer into
evidence a checklist to show what times Almquist utilized
to establish the 15-minute observation period required under
24 177 Neb. Admin. Code, ch. 1 (2004).
25 See State v. Green, 223 Neb. 338, 389 N.W.2d 557 (1986). See, also, State
v. Trampe, supra note 12.
STATE v. prESCOTT 	105
Cite as 280 Neb. 96

title 177. This court held in State v. Dail26 that the actual check-
list need not be entered into evidence; it is sufficient that the
officer testify that he followed the instructions in the checklist
in administering the test.
Finally, prescott argues that there was insufficient evidence
to support a finding that he was actually observed by Almquist
for the full 15 minutes and also insufficient evidence as to the
digital results of the test. But the record does not support this
contention. A review of the video of the stop shows that at
least 15 minutes elapsed between the initial contact between
Almquist and prescott and the administration of the pBT. And
on the video, Almquist is heard telling prescott that his result
was .093.
prescott’s fourth assignment of error is without merit.
A dmiSSibility of reSultS of blood teSt
In his fifth assignment of error, prescott argues that it was
error for the county court to receive into evidence the results of
the blood test finding his blood alcohol content to be .093. The
basis for this argument is prescott’s contention that the State
did not establish compliance with title 177.
[17-19] To be considered valid, blood tests under Neb. rev.
Stat. § 60-6,197 (reissue 2004) shall be performed pursuant
to methods approved by the Department of Health and Human
Services.27 Any deficiencies in the techniques used to test the
blood alcohol level in DUI cases generally are of no founda-
tional consequence, but only affect the weight and credibility
of the testimony.28 Under title 177, a technique is defined as
a “set of written instructions which describe the procedure,
equipment, and equipment preventive maintenance necessary
to obtain an accurate alcohol content test result.”29 A method,
however, is “the name of the principle of analysis.”30
26 State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988).
27 Neb. rev. Stat. § 60-6,201(3) (Cum. Supp. 2008).
28 State v. Green, supra note 25.
29 177 Neb. Admin. Code, ch. 1, § 001.21.
30 Id. at § 001.16.
106 	280 NEBrASkA rEpOrTS

prescott’s first argument is that the person who drew his
blood failed to put the full date or time on the tubes of blood
she drew from him and thus failed to comply with title 177.
Title 177 does provide that the following shall be listed on
the label of the specimen container: name of person tested,
date and time of collection, and initials of person collect-
ing specimen.31
A review of the record shows that title 177 was complied
with. The initials of the collector are on the container, as is
the time of collection. The date, but not the year, is also on the
label. But the year, along with the month and day, is on the
security seal on the container. And that month and day match
those on the label and also match the whole date listed on the
requisition form also in the record. Moreover, any deficiency
in the date would go to the weight of this evidence and not to
its admissibility.
prescott next contends that § 005.02 of title 177, chap-
ter 1, was not complied with in that there was insufficient
evidence presented to show that the specimen container in
which his blood was collected contained an anticoagulant.
But the collector of the specimen testified that there was
such an anticoagulant in the tube, as it was placed there by
the manufacturer.
prescott also argues that there was insufficient evidence that
the hospital was properly certified to test his blood. prescott
relies on § 60-6,201(3) and State v. Trampe,32 to support
this argument.
The technologist testified that the hospital was certified and
that, in addition, she had a permit to test blood in the manner
in which she did. Neither § 60-6,201(3) nor Trampe explicitly
provides that an actual copy of the certification is necessary.
And both § 60-6,201(3) and Trampe relate to certification in the
context of the collection of a specimen by a person who does
not hold the proper permit: In certain instances, medical per-
sonnel of a properly certified facility can take samples without
a permit, and in those situations, more evidence of certification
31 Id. at § 005.03.
32 State v. Trampe, supra note 12.
STATE v. prESCOTT 	107
Cite as 280 Neb. 96

might be necessary. Neither Trampe nor § 60-6,201(3) holds
what prescott claims they do. prescott’s argument on this point
is without merit.
prescott next asserts that the technologist was required under
177 Neb. Admin. Code, ch. 1, § 006.04C1c, to “[i]ntroduce at
least 0.050 ml volume of specimen into the sample cartridge”
when testing a sample under the radiative energy attenuation
method and that there was no testimony that the technologist
did so.
prescott is correct that there was not testimony on this point.
However, the technologist did testify that she conducted all
testing as required by title 177. And as noted above, title 177
does require a .050 milliliter volume of specimen. We conclude
that the technologist’s testimony was sufficient to show that the
proper volume of specimen was introduced.33
Finally, prescott contends that the technologist’s permit did
not authorize her to conduct testing via the radiative energy
attenuation method that was used in this case. But under title
177, one of the approved testing methods for a Class A per-
mit, which the technologist in this case had, was the radiative
energy attenuation method using the analyzer employed in this
case. prescott’s argument that the technologist was not autho-
rized in this case is without merit.
prescott’s fifth assignment of error is without merit.
coNStitutioNAlity of § 60-6,197.04
In his sixth and final assignment of error, prescott argues that
§ 60-6,197.04 is unconstitutional as applied and on its face.
Section § 60-6,197.04 provides in part:
Any peace officer who has been duly authorized to
make arrests for violation of traffic laws of this state or
ordinances of any city or village may require any person
who operates or has in his or her actual physical control a
motor vehicle in this state to submit to a preliminary test
of his or her breath for alcohol concentration if the officer
has reasonable grounds to believe that such person has
33 See State v. Green, supra note 25. See, also, State v. Trampe, supra note
12.
108 	280 NEBrASkA rEpOrTS

alcohol in his or her body, has committed a moving traffic
violation, or has been involved in a traffic accident.
The crux of prescott’s position is that this section is unconsti-
tutional because a breath test is a search, and a search must be
supported by probable cause. In prescott’s view, the reasonable
grounds required by § 60-6,197.04 are constitutionally insuf-
ficient, and instead, an officer must have probable cause to
require a person to submit to a pBT.
As an initial matter, we note that the State argues that
prescott waived the constitutional issue by failing to file a
motion to quash and additionally by failing to insist upon a
specific ruling by the county court.
[20,21] Neb. rev. Stat. § 29-1808 (reissue 2008) provides
that “[a] motion to quash may be made in all cases when
there is a defect apparent upon the face of the record, includ-
ing defects in the form of the indictment or in the manner in
which an offense is charged.” While ordinarily one must file a
motion to quash in order to preserve a constitutional challenge
to the facial validity of a statute,34 in this case the statute in
question, § 60-6,197.04, was not the charging statute. Nor was
its application in this instance apparent from the face of the
record. Under such circumstances, not only was it unnecessary
for prescott to file such a motion, it would have been inap-
propriate to do so. We therefore reject the State’s assertion that
prescott waived his facial challenge by failing to file a motion
to quash.
We also reject the State’s argument that prescott waived his
constitutional argument by failing to insist upon a ruling on his
constitutional challenge as set forth in his motion to suppress.
In this case, the county court denied prescott’s motion to sup-
press. Implicit in that finding was the county court’s rejection
of prescott’s constitutional argument.
Having concluded that prescott did not waive his consti-
tutional challenge, we address the merits of his claim that
§ 60-6,197.04 is unconstitutional because it does not require
probable cause to administer a pBT. We assume without
34 See State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
STATE v. prESCOTT 	109
Cite as 280 Neb. 96

deciding that a pBT would constitute a search under the
Fourth Amendment.
The Vermont Supreme Court recently addressed this issue
of whether probable cause was necessary to support a pBT in
State v. McGuigan.35 There, the court concluded:
pBTs are common tools in the investigatory kit officers
use to ascertain whether probable cause exists to believe
that an individual has been driving under the influence
of alcohol. pBTs are “quick and minimally intrusive” yet
“perform[] a valuable function as a screening device” to
detect drunk driving. . . . The relatively limited intrusion
into a suspect’s privacy is outweighed by the important
public-safety need to identify and remove drunk drivers
from the roads. . . . We thus find it reasonable, under . . .
the Fourth Amendment . . . for an officer to administer a
pBT to a suspect if she can point to specific, articulable
facts indicating that an individual has been driving under
the influence of alcohol.36
This court cites this same reasoning in State v. Royer37 in
concluding that field sobriety tests may be justified upon
a police officer’s reasonable suspicion based upon specific
articulable facts that the driver is under the influence of alco-
hol or drugs.
In Royer, we noted that courts had concluded that field
sobriety tests were more akin to a Terry stop as authorized by
Terry v. Ohio,38 and were reasonable so long as an officer could
point to “‘specific articulable facts’”39 supporting the stop and
limited intrusion. In this case, we agree that the administra-
tion of a pBT is more in line with field sobriety testing and a
Terry stop than it would be with a formal arrest. We therefore
conclude that the administration of a pBT does not need to be
supported by probable cause.
35 State v. McGuigan, 184 Vt. 441, 965 A.2d 511 (2008).
36 Id. at 449, 965 A.2d at 516-17 (citations omitted).
37 State v. Royer, supra note 13.
38 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
39 State v. Royer, supra note 13, 276 Neb. at 179, 753 N.W.2d at 340.
110 	280 NEBrASkA rEpOrTS

Because a pBT is quick and minimally intrusive, and because
the State has a compelling interest in removing drunk drivers
from its highways, we find that an officer is reasonable in
administering a pBT if he can point to specific, articulable
facts indicating that an individual has been driving under the
influence of alcohol. prescott’s sixth and final assignment of
error is without merit.
CONCLUSION
We find no merit to prescott’s assignments of error. The
decision of the district court is affirmed.
A ffirmed.
HOOpEr v. FrEEDOM FIN. GrOUp 	111
Cite as 280 Neb. 111
doNAld hooper ANd mArilyN hooper , huSbANd
ANd Wife , AppelleeS, v. freedom fiNANciAl
group, iNc., et Al ., AppellANtS.
784 N.W.2d 437
Filed June 25, 2010. 	No. S-09-796.
1. Trial: Witnesses. In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to be given their
testimony.
2. Witnesses: Evidence: Appeal and Error. An appellate court will not reevaluate
the credibility of witnesses or reweigh testimony but will review the evidence for
clear error.
3. Judgments: Appeal and Error. The trial court’s factual findings in a bench trial
of an action at law have the effect of a jury verdict and will not be set aside
unless clearly erroneous.
4. ____: ____. In reviewing a judgment awarded in a bench trial of a law action, an
appellate court does not reweigh evidence, but considers the evidence in the light
most favorable to the successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable inference deducible
from the evidence.
5. Judgments: Statutes: Appeal and Error. When an appeal calls for statutory
interpretation or presents questions of law, an appellate court must reach an
independent, correct conclusion irrespective of the determination made by the
court below.
6. Securities Regulation. The Securities Act of Nebraska should be liberally con-
strued to afford the greatest possible protection to the public.
Appeal from the District Court for Douglas County: JohN d.
hArtigAN, Jr ., Judge. Affirmed.