State v. McIntyre

Summary

The Nebraska Supreme Court held that evidence of a chemical breath test producing a deficient sample is admissible in a driving under the influence prosecution if the State establishes the required foundational elements. The court also held that the defendant waived his challenge to charging alternative enhancement theories by failing to move to quash the information, and it affirmed the conviction and sentence.

Holdings

1. Nebraska's DUI statutes and Department of Health and Human Services regulations do not bar evidence of a chemical breath-test result obtained from a deficient sample when the State lays sufficient foundation. The result may be admitted as evidence of the motorist's minimum breath-alcohol content.
2. McIntyre waived any objection that the amended information alleged inconsistent alternative theories because he did not timely move to quash the information. The court also concluded that the alternative theories concerned different methods of proving a single offense rather than separate offenses, and McIntyre failed to demonstrate prejudice.
3. The district court did not abuse its discretion by sentencing McIntyre to 365 days' imprisonment.
4. The evidence was sufficient to support the DUI conviction and the .15 breath-alcohol enhancement.

Questions Presented

1. Whether a chemical breath-test result from a deficient sample is admissible when the State establishes the required foundational elements.
2. Whether the State was required to elect between alleging a breath-alcohol concentration of at least .15 and alleging refusal to submit to chemical testing.
3. Whether the district court imposed an excessive sentence.
4. Whether sufficient evidence supported McIntyre's DUI conviction and the .15 breath-alcohol enhancement.

Disposition

affirmed