                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                        STATE V. MUHIC


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                             V.
                                  SECO MUHIC, APPELLANT.


                           Filed February 11, 2014.   No. A-13-160.


       Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge.
Affirmed.
       Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays for appellant.
       Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.


       IRWIN, MOORE, and BISHOP, Judges.
       IRWIN, Judge.
                                      I. INTRODUCTION
        Seco Muhic appeals his conviction and sentence for driving under the influence of
alcohol (DUI) with a concentration of .15 of 1 gram or more by weight of alcohol per 210 liters
of breath and with at least two prior DUI convictions. On appeal, Muhic challenges the district
court’s refusal to allow Muhic to question the arresting officer about a preliminary breath test
(PBT) performed on Muhic, the sufficiency of the evidence to support the assertion that his
blood alcohol content was at least .15, and the sentence imposed. We find no merit and affirm.
                                      II. BACKGROUND
       The events giving rise to this case occurred on or about January 2, 2012. On that evening,
the Lincoln Police Department received a telephone call that a member of the fire department
had observed a vehicle driving erratically. Officer Rusty Lashley received the call from dispatch
and proceeded to the area of the reported erratic driver.




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         Lashley eventually pulled in behind the vehicle and observed it to be “traveling very
slowly and then even com[ing] to a stop.” Lashley testified that the vehicle was traveling less
than 10 miles per hour in an area with a speed limit of 25 miles per hour and that the vehicle was
impeding the flow of traffic. Lashley activated the lights on top of his patrol car, and the vehicle
“drove slowly into [an apartment] parking lot as if it was going to stop, however, it continued to
drive.” Lashley then activated his patrol car’s siren, and the vehicle, “at a very slow speed,
approximately one mile an hour . . . continued through the parking lot for . . . about 120 feet
before the vehicle actually did come to a stop.”
         When Lashley made contact with the driver, Muhic, Muhic was very slow to respond to
Lashley’s presence and Lashley had to knock on the vehicle’s window to get Muhic’s attention.
After Lashley gave loud verbal commands and knocked on the vehicle’s window, Muhic “just
kind of continued to look around and slowly looked back. And then at one point it looked like he
was trying to manipulate the window and the door, and he struggled to deal with that as well.”
Eventually, Lashley himself had to open Muhic’s door to interact with him and Lashley turned
the vehicle off for Muhic. Muhic appeared confused about where to locate his license,
registration, and insurance information.
         Upon Muhic’s exiting of the vehicle, Lashley observed that Muhic was “unsteady on his
feet” and “was using the vehicle for balance.” Lashley also noticed a strong odor of alcoholic
beverage or alcohol on Muhic’s person. Lashley also noticed that Muhic’s eyes were watery and
red.
         Lashley conducted the horizontal gaze nystagmus field sobriety test. Lashley testified that
Muhic stopped following the stimulus and that Lashley observed each clue of impairment in each
eye. Muhic had indicated that he had a leg injury which would have impaired his ability to walk
in a straight line or stand on one leg, so Lashley did not perform additional field tests.
         Muhic told Lashley that he had consumed one drink. Lashley testified that his
observations were not consistent with that. Lashley testified that his opinion, based on his
observations, was that Muhic was under the influence of alcohol and impaired.
         Lashley then arrested Muhic and transported him to a detoxification center for
administration of an Intoxilyzer test. Lashley testified that Muhic provided an insufficient sample
on his first attempt to perform the Intoxilyzer test. On his second attempt, Muhic’s sample
indicated that his blood alcohol content was .220. The record indicates that the Intoxilyzer result
was obtained approximately 1 hour 20 minutes after Lashley first made contact with Muhic and
observed Muhic driving.
         Lashley testified that during the 1 hour 20 minutes between his observation of Muhic
driving and the Intoxilyzer result, he did not observe any signs of increased impairment or
anything to indicate that Muhic was becoming more intoxicated. He testified that in his
experience, if a person’s alcohol content is rising, his or her behavior changes.
         On cross-examination, Lashley acknowledged that it takes time for a body to absorb
alcohol and that absorption continues after a person stops drinking. He also acknowledged that
alcohol begins to dissipate at some point in time. He testified that he had no reason to believe
that Muhic’s blood alcohol content was lower when he was first contacted than when he was
tested with the Intoxilyzer.



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         Muhic’s counsel then asked Lashley if he performed “any type of test to measure his
blood alcohol level earlier.” Lashley acknowledged that he had given a test shortly after he
stopped Muhic. Muhic’s counsel then attempted to ask if the results of the PBT had been
significantly lower than the later Intoxilyzer test result. The State objected to the proposed
question and testimony, arguing that PBT results are not admissible in Nebraska.
         The court sustained the State’s objection. Muhic’s counsel clarified that he was not
asking for the actual PBT result, but, rather, was only seeking to ask if the result was
substantially lower than the later Intoxilyzer test result. Muhic’s counsel asserted that the State
was “going to make an improper argument because they know that the test result was lower.”
Counsel for the State responded by indicating, “We don’t know that because it’s not admissible,
because it’s not evidentiary in value. The other question could be, was it above .15?” The State
noted it could not ask that question. Muhic’s counsel then argued the State could ask that
question if he was allowed to ask whether the result was substantially lower than the Intoxilyzer
result, and noted that
         if I ask the question, was it substantially lower? And he answers the question, yes, it was.
         If the State asks, was it above .15, and he gets to answer that question, I think I can say,
         well, the breath test is not admissible into evidence because it is not as precise [as the
         Intoxilyzer].
         The court again sustained the State’s objection. Muhic’s counsel then asked to “just make
that an offer of proof that, that’s what I would ask him and that’s what I anticipate the answer is
going to --.”
         The jury returned a verdict of guilt, finding that Muhic was guilty of DUI and that he was
guilty of DUI with a concentration of .15 of 1 gram or more by weight of alcohol per 210 liters
of breath. The court sentenced Muhic to 3 to 4 years’ imprisonment and revoked his operator’s
license for 15 years. This appeal followed.
                                III. ASSIGNMENTS OF ERROR
       On appeal, Muhic asserts that the district court erred in refusing to allow him to ask
questions about the preliminary breath test results, that there was insufficient evidence to
demonstrate that his blood alcohol content was .15 or greater when he was driving, and that the
sentence imposed was excessive.
                                          IV. ANALYSIS
                                  1. PRELIMINARY BREATH TEST
       Muhic first asserts that the district court erred in sustaining the State’s objection and in
refusing to allow him to ask questions about the PBT results. We find no merit to this assertion.
       The Nebraska Supreme Court has held that in Nebraska, the results of a PBT may be
admitted in evidence for a limited purpose only. State v. Klingelhoefer, 222 Neb. 219, 382
N.W.2d 366 (1986). See State v. Green, 217 Neb. 70, 348 N.W.2d 429 (1984). The results of a
PBT are admissible for the limited purpose of establishing probable cause. State v. Scheffert, 279
Neb. 479, 778 N.W.2d 733 (2010); State v. Klingelhoefer, supra; State v. Green, supra. Muhic




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acknowledges that the results of a PBT are generally inadmissible, except for the limited purpose
of establishing probable cause.
        Even where the results of a PBT are admissible to establish probable cause, there remain
foundational requirements to admissibility. State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988).
Foundation evidence must establish that statutory requirements have been met, including
requirements that the method of performing the PBT has been approved by Nebraska’s health
department and that the testing officer possessed a valid permit issued by the department for such
purpose. Id. The operator is required to perform all tests according to the checklist technique set
forth in the Nebraska Administrative Code. Id. Prior to administering the PBT, the operator is
required to verify that maintenance, repair, and calibration have been performed for the testing
device by reviewing the maintenance record. Id. For example, in State v. Prescott, 280 Neb. 96,
784 N.W.2d 873 (2010), the Nebraska Supreme Court held that the results of a PBT were
properly admitted to establish probable cause because the administering officer had testified that
he followed the Nebraska Administrative Code in administering the PBT, that the breath testing
device was calibrated, and that the required length of the required observation period elapsed
between the initial contact with the defendant and administration of the PBT. See, also, State v.
Scheffert, supra (evidence establishing defendant was in position where no event could have
tainted results of PBT satisfied foundational requirement of elapsing of required length of
required observation period).
        In the present case, the State did not attempt to introduce the results of the PBT at all.
Indeed, Lashley was not asked during direct examination and did not testify about a PBT even
being performed. As a result, Lashley did not testify about any of the necessary foundational
requirements for the results to be admissible even for their limited purposes.
        Muhic attempted to elicit testimony about the results of the PBT and argued that he
should be able to do so because the State had “opened the door” to such testimony. Muhic’s
assertion is that Lashley testified that he did not observe any signs of increased impairment
between the time of his initial contact and administration of the Intoxilyzer test approximately
1½ hours later and that, in his experience, if a person’s blood alcohol content is rising, there
would be signs of increased impairment. On cross-examination, Lashley testified that it takes
time for the body to absorb alcohol and that it continues to do so after a person stops drinking,
and that the alcohol also begins to dissipate at some point in time. He testified that he had no
reason to believe that Muhic’s blood alcohol content was lower when first contacted than at the
time of the Intoxilyzer test. Muhic’s counsel then asked if a PBT had been administered.
        Muhic’s counsel indicated that “all I’m going to ask him is, did you test him earlier, was
it significantly lower when you tested him earlier? That is reason to believe that the blood
alcohol level was going up as opposed to going down.” A fairly lengthy exchange of
conversation between Muhic’s counsel, the State’s counsel, and the court ensued, and the court
then sustained the State’s objection and held that it would not allow the question. Muhic’s
counsel then asked, “[C]ould I just make that an offer of proof that, that’s what I would ask him
and that’s what I anticipate the answer is going to --.” The court sustained the State’s objection to
the offer of proof.
        In this case, we find no error in the district court’s refusal to allow Muhic to question
Lashley about the results of the PBT. As noted, such results are generally admissible only for


                                                -4-
limited purposes and, even then, are admissible only when sufficient foundation has been
established. In this case, there was no foundation for admission of the PBT results for any
purpose. Moreover, Muhic’s offer of proof did not indicate that sufficient foundation existed for
admission of the PBT results for any purpose.
        Muhic’s offer of proof did not clearly indicate what Lashley would testify to--whether the
results actually were significantly lower than the subsequent Intoxilyzer test results. Muhic’s
offer of proof did not include any assertion that he could establish any of the foundational
elements concerning calibration, maintenance, or the observation period that necessarily are
crucial to the results of a PBT being reliable for any purpose. In addition, Muhic’s offer of proof
did not include any assertion that he would be able to establish that even if the results of the PBT
were significantly lower than the subsequent Intoxilyzer test results that such a result actually
correlates to Muhic’s blood alcohol content being significantly lower; without sufficient
foundation to establish minimal reliability of the PBT, Muhic has failed to establish any
reasonable correlation.
        Muhic argues that the present case is comparable to the situation presented in State v.
Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999). We disagree, for many of the reasons already
iterated.
        In State v. Lessley, supra, the defendant was charged with first degree sexual assault and
sought, on cross-examination, to elicit testimony from the victim’s coworker about comments the
victim had allegedly previously made about past sexual activity. In that case, the assertion was
that the defendant had subjected the victim to anal intercourse without her consent, and the
defendant asserted that the activity was consensual. During testimony elicited by the State, the
victim testified that she was a lesbian and had “‘never, ever engaged in anything like that.’” Id.
at 905, 601 N.W.2d at 524. She also testified that she did not know if the defendant had
ejaculated during the incident because she was a lesbian “and [they] don’t do that.” Id.
        The defendant in State v. Lessley wanted to elicit testimony from a coworker that the
victim had previously told him that she had anal sex with men to avoid becoming pregnant. The
court had ruled prior to trial that such testimony would not be allowed, under the rape shield law.
On cross-examination, the victim was specifically asked if she had told a coworker that, and she
denied it. The defendant again sought to be allowed to have the coworker testify, both because
the State had “opened the door” and to impeach the victim’s testimony from cross-examination.
        In State v. Lessley, the Nebraska Supreme Court held that the State had opened the door
and that the testimony was admissible. The court held that whether intended or not, the State had
elicited testimony regarding the victim’s sexual preference and experience that permitted the jury
to draw an inference that she did not consent to having anal sex. The court held that the evidence
proffered by the defendant would have made that inference less probable, and denial of the
evidence violated the defendant’s Sixth Amendment right to confrontation.
        In the present case, Muhic argues that the State similarly “opened the door” by eliciting
testimony from Lashley that permitted an inference that Muhic’s blood alcohol content was not
increasing prior to the Intoxilyzer test being administered. Muhic argues that the results of the
PBT, if they were actually significantly lower, might have tended to make that inference less
probable. Additionally, Muhic attempted to present the results of the PBT to impeach Lashley’s



                                               -5-
testimony that he had no reason to believe that Muhic’s blood alcohol content was significantly
lower prior to administration of the Intoxilyzer test.
         We do not find Muhic’s argument persuasive. In State v. Lessley, supra, the defendant
clearly demonstrated what the proffered testimony would have been. It was readily apparent how
that proffered testimony would have tended to make less probable the inference established by
the State’s questioning, and it was readily apparent how the proffered testimony would have
impeached the testimony of the victim. None of those is true in the instant case. As noted,
Muhic’s offer of proof did not even establish that the results of the PBT were actually
significantly lower than the subsequent Intoxilyzer test. More important, however, Muhic’s offer
of proof did not include any indication of the necessary foundational requirements that establish
reliability of a PBT for even its limited admissibility or any indication of the correlation between
a PBT and the subsequent blood alcohol content established by the Intoxilyzer test. As such,
Muhic’s offer of proof did not establish how the results of the PBT might have tended to make
less probable any inference established by the State’s questioning of Lashley or how the results
might have impeached Lashley’s testimony.
         We find no merit to Muhic’s assertion that the district court erred in sustaining the State’s
objection and refusing to allow him to elicit testimony about the results of the PBT.
                                    2. SUFFICIENCY OF EVIDENCE
        Muhic next asserts that the State did not adduce sufficient evidence to establish that his
blood alcohol content when he was operating a motor vehicle was .15 of 1 gram or more by
weight of alcohol per 210 liters of breath. We find no merit to this assertion.
        Under Neb. Rev. Stat. § 60-6,201(1) (Reissue 2010), any chemical test conducted
according to methods approved by the Nebraska Department of Health and Human Services and
with a valid permit shall be competent evidence in a prosecution for operating a motor vehicle
when the concentration of alcohol in the blood or breath exceeds allowable levels. State v.
Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010). The Nebraska Supreme Court has specifically
held that “matters of delay between driving and testing are properly viewed as going to the
weight of the breath test results, rather than to admissibility of the evidence” and that “[a] valid
breath test given within a reasonable time after the accused was stopped is probative of a [DUI]
violation.” State v. Kubik, 235 Neb. 612, 634, 456 N.W.2d 487, 501 (1990). The State is not
required to prove a temporal nexus between the test and the defendant’s alcohol level at the
moment he or she was operating the vehicle. State v. Dinslage, supra; State v. Kubik, supra. It
would be an impossible burden on the State to conduct an extrapolation and provide a conclusive
temporal nexus. State v. Dinslage, supra.
        It is true that “[i]n some cases, the delay may be so substantial as to render the test results
nonprobative of the accused’s impairment or breath alcohol level while driving.” State v. Kubik,
235 Neb. at 634, 456 N.W.2d at 501. In State v. Blackman, 254 Neb. 941, 580 N.W.2d 546
(1998), the Nebraska Supreme Court upheld a DUI conviction where the delay between an
officer’s receiving a dispatcher’s notice that a motorcycle was observed in a ditch and
administration of an Intoxilyzer test was approximately 1½ hours. Despite a lack of any direct
evidence of the defendant’s blood alcohol content when he was actually in control of the
motorcycle, the evidence was sufficient to support a finding that the defendant had been DUI.


                                                 -6-
        Similarly, in State v. Rodgers, 2 Neb. App. 360, 509 N.W.2d 668 (1993), this court
upheld a DUI conviction where the delay between the driver being stopped and administration of
a breath test was 1 hour 42 minutes. In so doing, we referenced the Nebraska Supreme Court’s
decision in State v. Kubik, supra, which cited with approval cases in which the delay in
administration of a breath test was up to 2 hours 45 minutes after the driver was stopped. See,
e.g., State v. Taylor, 132 N.H. 314, 566 A.2d 172 (1989) (1-hour-15-minute delay); Com. v.
Slingerland, 358 Pa. Super. 531, 518 A.2d 266 (1986) (1-hour-23-minute delay); Com. v.
Speights, 353 Pa. Super. 258, 509 A.2d 1263 (1986), appeal denied 517 Pa. 594, 535 A.2d 83
(1987) (2-hour-45-minute delay).
        In the present case, the State adduced evidence that the results of the Intoxilyzer test
administered approximately 1 hour 20 minutes after Lashley made contact with Muhic and
observed Muhic driving revealed a blood alcohol content of .220. Lashley testified about his
observations of Muhic upon his initial contact, including Muhic’s being very slow to respond to
Lashley’s presence, difficulty manipulating the window and door of his vehicle, and confusion
about where to locate his license, registration, and insurance information. Lashley had to open
the vehicle door for Muhic and had to turn Muhic’s vehicle off for him. Upon Muhic’s exiting
the vehicle, Lashley observed that Muhic was unsteady on his feet, and Lashley observed a
strong odor of alcoholic beverage or alcohol on Muhic’s person and observed that Muhic’s eyes
were watery and red.
        Lashley testified that he did not observe any signs of increased impairment from the time
of his initial contact and observations and the subsequent administration of the Intoxilyzer test.
He did not observe anything to suggest that Muhic was “drunker” at the time of the Intoxilyzer
test.
        We find no merit to Muhic’s assertion that the State adduced insufficient evidence to
establish that his blood alcohol content was .15 or greater at the time he was operating a motor
vehicle.
                                    3. EXCESSIVE SENTENCE
         Finally, Muhic asserts that the district court imposed an excessive sentence. Muhic’s
sentence was within statutory limits, and there is no apparent abuse of discretion. This assigned
error is meritless.
         Sentences imposed within statutory limits will be disturbed on appeal only if the
sentences complained of were an abuse of judicial discretion. State v. Podrazo, 21 Neb. App.
489, 840 N.W.2d 898 (2013). 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, or evidence. Id.
         When imposing a sentence, a sentencing judge should consider the defendant’s (1) age,
(2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved in the commission of the crime.
Id. In imposing a sentence, the sentencing court is not limited to any mathematically applied set
of factors. Id. The appropriateness of a sentence is necessarily a subjective judgment and



                                              -7-
includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. Id.
         Driving under the influence, third offense, with more than .15 of 1 gram of alcohol per
210 liters of breath is a Class IIIA felony offense. Neb. Rev. Stat. §§ 60-6,196 (Reissue 2010)
and 60-6,197.03(6) (Cum. Supp. 2012). A Class IIIA felony offense is punishable by up to 5
years’ imprisonment, a fine of $10,000, or both. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012).
         Muhic was sentenced to 3 to 4 years’ imprisonment, clearly within the statutory limits for
this offense. Muhic’s assertion that his sentence was excessive is based entirely on an assertion
that the district court failed to fully consider and weigh the relevant sentencing factors.
Specifically, Muhic asserts that the court failed to consider his rehabilitative needs and his desire
to treat his addiction but lack of an effective support system.
         At the time of sentencing, the district court specifically indicated that it had “consider[ed]
a number of factors” and had “take[n] into consideration all of the comments of [Muhic’s]
attorney, and all of the information in the Presentence Report.” The court was influenced by
Muhic’s criminal history and prior record of alcohol-related problems. This was a third-offense
DUI with an aggravated blood alcohol level, where Muhic was observed driving on a public
roadway while highly intoxicated. There was no abuse of discretion by the district court in
imposing this sentence, and Muhic’s assertion to the contrary is meritless.
                                         V. CONCLUSION
       We find no merit to Muhic’s assertions on appeal. The district court did not err in
refusing to allow Muhic to elicit testimony about the results of a PBT, there was sufficient
evidence to support the conviction, and the sentence imposed was not excessive. We affirm.
                                                                                    AFFIRMED.




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