State of Nebraska v. Bruce V. Rask

According to evidence presented at trial, on January 16,

2014, Rask got off work around 11:30 p.m. to midnight. He

procured a 12-pack of Bud Light beer before leaving work.

Rask then picked up his friend, Carson Corr. They drove to the

home of another mutual friend, where Rask and Corr each had

one or two beers. Rask and Corr stayed at the friend’s house

until approximately 1 a.m.

Afterward, Rask drove Corr back to Corr’s residence. Rask

and Corr testified at trial that Rask was not impaired during

the drive back to Corr’s house. However, Kring testified

that Rask had admitted that he got drunk before returning to

Corr’s home.

Rask testified that he left the engine of his pickup truck

running because it was cold outside. He claims he did not

pull into Corr’s driveway, because he did not want to wake

Corr’s dogs and parents. Rask and Corr then sat in the vehicle

until about 3 a.m., talking and drinking. Rask and Corr testified

that they finished all but one beer out of the 12-pack of

Bud Light. There is conflicting evidence in the record, but

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it appears that Rask had between four and six beers. Corr

allegedly took the last bottle into his home when he left,

along with all the empty bottles. Rask testified that he did

not touch any controls of the truck while sitting in front of

Corr’s residence.

After Corr left, Rask decided to sleep in his truck. He

alleges that he believed sleeping in his truck was the right

thing to do because he did not want to get in trouble for driving

drunk. Additionally, Rask testified that even though he

was friends with Corr’s parents, he did not go into Corr’s

home because he did not want to wake anybody. However,

Kring testified that Rask later stated he did not go inside

because he had had an argument with Corr. In any event,

according to Rask, he had no feasible alternatives to sleeping

in his running truck.

Around 4:40 a.m. on January 17, 2014, Kring was on duty

and drove past Rask’s truck while on patrol. At about 5:25

a.m., Kring drove past again and this time noticed an elbow

visible through the window, so he stopped to investigate. He

saw Rask, whom Kring recognized, asleep in the driver’s seat.

Eventually Kring was able to rouse Rask by yelling his name

through the partially open passenger-side window.

Rask admitted to Kring that he was drunk. Additionally,

Kring noticed a “koozie” between Rask’s feet, containing what

was later discovered to be a mostly empty Miller Lite beer can.

Corr testified at trial that he left this can in Rask’s truck sometime

before January 16, 2014. Kring did not find any other

alcohol containers in or around the truck.

Kring administered three field sobriety tests, each of which

Rask was unable to successfully complete. Kring testified at

trial that Rask also smelled of alcohol. Kring also administered

a preliminary breath test (PBT). The results of the PBT were

not offered at trial. After the PBT, Kring asked Rask whether

he would submit to a chemical blood test; Rask refused. Kring

testified at trial that during this interaction, Rask became angry,

kicking his truck and using expletives.

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The State charged Rask with three offenses: DUI, in violation

of Neb. Rev. Stat. § 60-6,196 (Reissue 2010); refusal

to submit to a chemical test, in violation of Neb. Rev. Stat.

§ 60-6,197 (Cum. Supp. 2014); and possession of an open

alcohol container. The second count, refusal to submit to a

chemical test, was dropped by the State after a “problem” was

discovered. In his brief, Rask asserts the “problem” was that

Kring failed to give Rask a proper advisement required under

§ 60-6,197. The record does not explicitly indicate the nature

of the so-called problem, but there is no evidence that Kring

gave the advisement.

A jury found Rask guilty of the DUI charge, for which the

county court sentenced Rask to 180 days’ imprisonment, a

$1,000 fine, and a 15-year suspension of his driver’s license.

The county court also found Rask guilty of possession of an

open alcohol container and fined Rask $100 for that infraction—

a conviction from which Rask does not appeal.

III. ASSIGNMENTS OF ERROR

Rask assigns, restated and renumbered, that (1) the county

court erred by admitting evidence that Kring performed a PBT,

(2) the county court erred by admitting evidence that Rask

refused to submit to a chemical blood test, (3) the State committed

prosecutorial misconduct by introducing evidence of

the PBT and the refusal, (4) the county court erred in denying

Rask’s motion for a mistrial, (5) the county court erred by giving

a misleading jury instruction on the definition of “actual

physical control of a motor vehicle,” and (6) the county court

erred by failing to give the jury instruction on choice of

lesser harm.

IV. STANDARD OF REVIEW

[1] Statutory interpretation presents a question of law, which

an appellate court reviews independently of the lower court’s

determination.1

1 State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).

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[2] In a jury trial of a criminal case, an erroneous evidentiary

ruling results in prejudice to a defendant unless the State

demonstrates that the error was harmless beyond a reasonable

doubt.2

[3] In a harmless error review, an appellate court looks at

the evidence upon which the jury rested its verdict; the inquiry

is not whether in a trial that occurred without the error a guilty

verdict would surely have been rendered, but, rather, whether

the guilty verdict rendered in the trial was surely unattributable

to the error.3

[4] Whether jury instructions given by a trial court are correct

is a question of law. When dispositive issues on appeal

present questions of law, an appellate court has an obligation

to reach an independent conclusion irrespective of the decision

of the court below.4

V. ANALYSIS

1. Motion in Limine

Rask’s first four assignments of error concern the admission

of evidence that Kring performed a PBT and that Rask

refused to submit to a chemical blood test. Before trial, Rask

filed a motion in limine to exclude all evidence concerning

the PBT and his refusal. The county court partially granted the

motion, excluding only the results of the PBT. Rask objected

to all evidence concerning the tests at trial, and also moved

for a mistrial on this basis.

(a) Evidence of PBT

[5] In Rask’s first assignment of error, he argues that evidence

he performed a PBT was inadmissible. As a general

rule, PBT evidence is inadmissible as proof that a defendant

2 State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).

3 State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).

4 State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).

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was impaired or intoxicated; this court has repeatedly limited

the admissibility of the results of a PBT to the purpose of

showing probable cause either for an arrest or for administering

a chemical test.5 Neither of these issues is contested in

this case.

In State v. Green,6 as in the present case, the State had

offered evidence that a PBT was administered and that the

defendant was arrested after taking the test. This court questioned

whether it was error to admit evidence that a PBT was

administered, as distinct from the results of that PBT.7

But without answering that question, we found harmless

error. In Green, the State had also presented the arresting officer’s

testimony that the defendant failed field sobriety tests.8

Therefore, the verdict was not attributable to the fact that a

PBT was administered.

We also find that any error in this case was harmless. At

trial in this case, Rask did not contest that he was drunk at the

time Kring administered the PBT. There was ample evidence

to support this fact. Rask and Corr both testified that Rask

had consumed approximately five to seven beers between 1

and 3 a.m., Rask admitted to Kring that he was drunk, Rask

failed three different sobriety tests, and he smelled of alcohol.

Considering all of this undisputed testimony, the jury’s verdict

is unattributable to the admission of the mere fact that Rask

took a PBT, and any error by the district court in admitting

such evidence is harmless.

Rask’s first assignment of error is without merit.

5 See, e.g., State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010)

(concerning defendant’s challenge to probable cause for arrest); State v.

Green, 223 Neb. 338, 389 N.W.2d 557 (1986); State v. Klingelhoefer, 222

Neb. 219, 382 N.W.2d 366 (1986).

6 Green, supra note 5.

7 Id.

8 Id. See, also, Klingelhoefer, supra note 5; State v. Smith, 218 Neb. 201,

352 N.W.2d 620 (1984).

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(b) Evidence of Refusal

In Rask’s second assignment of error, he argues the county

court erred by admitting evidence that Rask refused to submit

to a chemical blood test. Rask alleges that Kring did not advise

Rask refusal was a separate crime and, therefore, that his

refusal was inadmissible for any purpose. Upon our de novo

review, interpreting § 60-6,197, we find no error.

Under § 60-6,197(1), “[a]ny person who operates or has in

his or her actual physical control a motor vehicle . . . shall be

deemed to have given his or her consent to submit to a chemical

test . . . .” Refusal to submit to a chemical test is a crime.

Section 60-6,197 also states:

(5) Any person who is required to submit to a chemical

blood, breath, or urine test or tests pursuant to this

section shall be advised that refusal to submit to such

test or tests is a separate crime for which the person may

be charged. Failure to provide such advisement shall

not affect the admissibility of the chemical test result

in any legal proceedings. However, failure to provide

such advisement shall negate the state’s ability to bring

any criminal charges against a refusing party pursuant to

this section.

(6) Refusal to submit to a chemical blood, breath, or

urine test or tests pursuant to this section shall be admissible

evidence in any action for a violation of section

60-6,196 . . . .

Though Rask was convicted of DUI under § 60-6,196, he asks

us to find that subsection (6) is limited to properly advised,

informed refusals.

In State v. Christner,9 this court found that chemical test

results—not refusals—should be excluded when the defendant

was not properly advised of the consequences of refusal.

The version of § 60-6,197 then applicable had language

9 State v. Christner, 251 Neb. 549, 557 N.W.2d 707 (1997), overruled on

other grounds, State v. Anderson, 258 Neb. 627, 605 N.W.2d 124 (2000).

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nearly identical to the language of subsection (6) now in

effect, but did not include the portion of subsection (5) stating

that the “[f]ailure to provide [an] advisement shall not

affect the admissibility of the chemical test result in any legal

proceedings.”10

[6,7] In light of this revision, we find that our holding in

Christner does not apply to the present version of § 60-6,197.

The plain language of subsection (5) contradicts our holding in

Christner; chemical test results are admissible in all legal proceedings,

even if that chemical test was administered without

the proper advisement. Furthermore, based upon subsections

(5) and (6), as well as public policy, we hold that § 60-6,197

permits evidence of refusal to prove DUI charges, even when

the defendant was not properly informed that refusal is a separate

crime.

[8] In the absence of anything to the contrary, statutory

language is to be given its plain and ordinary meaning.11 And

the plain language of the statute supports this finding. While

§ 60-6,197 clearly bars prosecution for the crime of refusal if

the defendant was not properly informed, the statute does not

specifically address the admissibility of uninformed refusals

in DUI cases. Instead, subsection (6) is a broad rule, without

exception—it states only that a refusal is admissible to prosecute

a DUI. We hold that under this broad rule, even uninformed

refusals to submit to a chemical test are admissible for

the purpose of proving DUI charges.

Further, subsection (5), permitting the admission of uninformed

chemical test results, suggests that whether a refusal

or submission to a chemical test was informed bears only upon

the ability of the State to bring charges against the defendant

for said refusal; those results are still admissible to prove the

elements of a DUI charge. It is illogical to admit the results

of a chemical test to prove a DUI where the defendant was

10 See § 60-6,197(10) (Reissue 1993).

11 State v. Loyd, 275 Neb. 205, 745 N.W.2d 338 (2008).

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uninformed, but to exclude the defendant’s refusal to take that

same, uninformed, chemical test.

[9] Public policy bolsters this reading. This court considered

the relevance of refusals in DUI cases in State v. Meints.12

In that case, we determined that a defendant’s refusal to

submit to a chemical test was evidence of circumstances surrounding

the DUI charge—it showed the “defendant’s conduct,

demeanor, statements, attitudes, and relation toward the

crime.”13 These facts are equally relevant where a defendant’s

refusal is informed.

In the present case, Kring testified about Rask’s refusal to

submit to a chemical test in the context of Rask’s behavior and

attitude at the time of his arrest. This information was relevant

to the DUI charge against Rask.

For these reasons, Rask’s second assignment of error is

without merit.

(c) Prosecutorial Misconduct

and Mistrial

In Rask’s third and fourth assignments of error, he argues

that as a result of the evidence of the PBT and his refusal to

submit to a chemical test, the State committed prosecutorial

misconduct and the county court erred by denying his motion

for a mistrial. Finding no merit to Rask’s contention that this

evidence was wrongly admitted, we decline to further address

his third and fourth assignments of error.

2. Jury Instructions

In Rask’s fifth and sixth assignments of error, he asserts

that two of the given jury instructions were incorrect. After the

close of evidence at trial, Rask objected to jury instructions

Nos. 3 and 4. Specifically, he argued that instruction No. 4

12 State v. Meints, 189 Neb. 264, 202 N.W.2d 202 (1972).

13 Id. at 266, 202 N.W.2d at 203.

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incorrectly defined “actual physical control of a motor vehicle”

and that instruction No. 3 should have required the State

to prove that Rask was not avoiding greater harm by choosing

to sleep in his truck.

[10] It is the duty of a trial judge to instruct the jury on the

pertinent law of the case, whether requested to do so or not,

and an instruction or instructions which by the omission of

certain elements have the effect of withdrawing from the jury

an essential issue or element in the case are prejudicially erroneous.

14 Whether jury instructions given by a trial court are

correct is a question of law. When dispositive issues on appeal

present questions of law, an appellate court has an obligation

to reach an independent conclusion irrespective of the decision

of the court below.15

In his brief, Rask also asserts that the county court’s

instructions on the definitions of “intoxication” and “under

the influence of alcoholic liquor” were “confusing and contradictory.”

16 He further argues that the definition of “operate”

was irrelevant and confusing to the jury. An alleged error must

be both specifically assigned and specifically argued in the

brief of the party asserting the error to be considered by an

appellate court.17 Because Rask does not assign as error the

giving of these instructions, we need not discuss this argument

further.

(a) Actual Physical Control

of Motor Vehicle

In Rask’s fifth assignment of error, he argues that the

county court erred by instructing the jury that “actual physical

control of a motor vehicle” means “one present in a

14 State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).

15 Edwards, supra note 4.

16 Brief for appellant at 11.

17 State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).

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motor vehicle directing influence, dominion or regulation

thereof.” We find that the definition provided to the jury was

adequate.

[11] This court has not defined “actual physical control

of a motor vehicle.” Rask cites no case law holding that the

definition in instruction No. 4 was incorrect or offers an alternative

instruction. The entirety of his argument on appeal is

that the definition was “conclusory and nonsensical” because

it permitted the jury to believe that sleeping in the driver’s

seat of a parked, running vehicle constitutes actual physical

control.18 We now hold that on these facts, where a person sits

in the driver’s seat of a motor vehicle with the engine running,

parked on a public road, that person has actual physical control

of that motor vehicle.

[12] Among jurisdictions with similar DUI statutes, there

does not appear to be a bright-line rule for what constitutes

actual physical control. However, a number of these jurisdictions

have held that the use of the phrase “actual physical

control” exhibits a legislative intent to prevent persons under

the influence of drugs or alcohol from creating dangerous conditions

on public roadways.19 The word “or,” when used properly,

is disjunctive.20 Therefore, these courts have determined

that to have “actual physical control” must mean something

other than to “operate.” Thus, they interpret “actual physical

control” broadly to address the risk that a person not yet operating

a motor vehicle might begin operating that vehicle with

very little effort or delay.

We agree with the reasoning of these jurisdictions. Section

60-6,196(2) states that “[a]ny person who operates or is in the

actual physical control of any motor vehicle while [under the

18 Brief for appellant at 11.

19 See, e.g., Atkinson v. State, 331 Md. 199, 627 A.2d 1019 (1993); State v.

Smelter, 36 Wash. App. 439, 674 P.2d 690 (1984) (citing State v. Schuler,

243 N.W.2d 367 (N.D. 1976)).

20 State v. Thacker, 286 Neb. 16, 834 N.W.2d 597 (2013).

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influence of drugs or alcohol] shall be guilty of a crime . . . .”

(Emphasis supplied.) The acts of starting or driving a vehicle

fall within the definition of “operate”; thus, we determine that

the Legislature intended “actual physical control” to describe

acts short of starting or driving a vehicle.

[13] Considering the policy purpose and disjunctive language

of the statute, we hold that “actual physical control of a

motor vehicle” may be adequately defined as “directing influence,

dominion, or regulation of a motor vehicle.” Other jurisdictions

have accepted similar definitions.21 We do not suggest

that this is the only correct definition of the term, or that it is

most correct; rather, we find that in this case, the district court

did not err in giving that definition.

In other jurisdictions, courts have looked to a number of

factors to determine whether a defendant was in actual physical

control of a motor vehicle, including: whether the key was

in the ignition or in the defendant’s possession, whether the

engine was running, whether the vehicle was parked away from

traffic, and whether the defendant was awake or asleep.22

Looking to the factors used in other jurisdictions, and the

preventative nature of the statute, we find that Rask was in

actual physical control of a motor vehicle. Rask admits that

he became intoxicated while sitting in the driver’s seat of his

truck, with the keys in the ignition and the engine running,

while parked on a public roadway. Rask could have easily

and nearly instantaneously begun operating the truck, placing

any surrounding people and property in peril. These facts

21 See, e.g., Griffin v. State, 457 So. 2d 1070, 1072 (Fla. App. 1984)

(“‘[d]efendant must have had the capability and power to dominate, direct

or regulate the vehicle, regardless of whether or not he is exercising that

capability or power at the time of the alleged offense’”); State v. Ruona,

133 Mont. 243, 248, 321 P.2d 615, 618 (1958) (“[u]sing the term in ‘actual

physical control’ in its composite sense, it means ‘existing’ or ‘present

bodily restraint, directing influence, domination or regulation’”).

22 See, e.g., State v. Robison, 281 Mont. 64, 931 P.2d 706 (1997); Atkinson,

supra note 19; Schuler, supra note 19; Griffin, supra note 21.

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fall within the purpose and language of § 60-6,196. Numerous

jurisdictions would concur with this result.23

Rask’s fifth assignment of error is without merit.

(b) Choice of Lesser Harm

Finally, Rask asserts the county court erred by refusing his

request to add an element to the DUI instruction requiring

the State to prove Rask was not acting to avoid greater harm.

We find no error in the county court’s failure to so instruct

the jury.

[14] To establish reversible error from a court’s refusal to

give a requested instruction, an appellant has the burden to

show that (1) the tendered instruction is a correct statement

of the law, (2) the tendered instruction is warranted by the

evidence, and (3) the appellant was prejudiced by the court’s

refusal to give the tendered instruction.24

Although Rask requested the instruction as a negative element

of the DUI charge, choice of lesser harm, or “justification,”

is an affirmative defense; the defendant bears the initial

burden of going forward with evidence of the defense.25 Where

the record shows there is no legally cognizable defense of justification,

the issue will not be submitted to the finder of fact.26

Therefore, we consider whether Rask produced sufficient evidence

to warrant presentation of a choice of evils instruction

to the jury.

[15] The choice of evils defense requires that a defendant

(1) acts to avoid a greater harm; (2) reasonably believes

that the particular action is necessary to avoid a specific and

immediate harm; and (3) reasonably believes that the selected

23 See, e.g., State v. Godfrey, 137 Vt. 159, 400 A.2d 1026 (1979); State v.

Woolf, 120 Idaho 21, 813 P.2d 360 (Idaho App. 1991); Richfield City v.

Walker, 790 P.2d 87 (Utah App. 1990); Griffin, supra note 21.

24 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).

25 See State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).

26 Id.

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action is the least harmful alternative to avoid the harm, either

actual or reasonably believed by the defendant to be certain

to occur.27

Rask claims that he acted to avoid the greater harm of freezing

to death while walking across town to get home. Even

assuming that there was a real risk that Rask might die or

become seriously injured from the cold, his argument fails.

Even if Rask had no less harmful alternative to sleeping in

his truck, he had already committed DUI before falling asleep.

As discussed above, Rask was in actual physical control of

a motor vehicle when he sat in the driver’s seat of his truck

with the keys in the ignition and the engine running, parked

on a public street. The crime, then, took place before Rask

resorted to sleeping in the truck. Rask chose to get drunk in

his truck, rather than deciding to remain sober or arrange to

drink in another location. Thus, the instruction was not warranted

by the evidence and Rask suffered no prejudice from

its omission.

Rask’s final assignment of error is without merit.