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08/31/2018 09:10 AM CDT




                                                         - 152 -
                                  Nebraska Supreme Court A dvance Sheets
                                          300 Nebraska R eports
                                                  STATE v. HATFIELD
                                                  Cite as 300 Neb. 152




                                        State of Nebraska, appellant, v.
                                          Steven J. H atfield, appellee.
                                                    ___ N.W.2d ___

                                           Filed June 8, 2018.     No. S-16-893.

                1.	 Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
                    case from the county court, the district court acts as an intermediate
                    court of appeals, and its review is limited to an examination of the
                    record for error or abuse of discretion.
                2.	 Courts: Appeal and Error. Both the district court and a higher appel-
                    late court generally review appeals from the county court for error
                    appearing on the record.
                3.	 Judgments: Appeal and Error. When reviewing a judgment for errors
                    appearing on the record, an appellate court’s inquiry is whether the deci­
                    sion conforms to the law, is supported by competent evidence, and is
                    neither arbitrary, capricious, nor unreasonable.
                4.	 Search and Seizure. Application of the good faith exception to the
                    exclusionary rule is a question of law.
                5.	 Judgments: Appeal and Error. On a question of law, an appellate court
                    reaches a conclusion independent of the court below.
                6.	 Criminal Law: Statutes: Appeal and Error. Absent specific statutory
                    authorization, the State generally has no right to appeal an adverse rul-
                    ing in a criminal case.
                7.	 Constitutional Law: Search and Seizure: Evidence. The exclusionary
                    rule is a judicially created remedy that generally prohibits the use of evi-
                    dence obtained in violation of a defendant’s Fourth Amendment rights.
                8.	 Search and Seizure: Police Officers and Sheriffs: Intent. The purpose
                    of the exclusionary rule is to deter police misconduct.
                9.	 Courts: Search and Seizure. Because the exclusionary rule should not
                    be applied to objectively reasonable law enforcement activity, the U.S.
                    Supreme Court created a good faith exception to the rule.
               10.	 Constitutional Law: Courts: Search and Seizure: Police Officers
                    and Sheriffs: Evidence. A court may decline to apply the exclusionary
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                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                               STATE v. HATFIELD
                               Cite as 300 Neb. 152

     rule when evidence is obtained pursuant to an officer’s objectively
     reasonable reliance on a law that is not clearly unconstitutional at
     the time.
11.	 Courts: Judgments: Appeal and Error. Where an exception proceed-
     ing is brought from the district court sitting as an appellate court, Neb.
     Rev. Stat. § 29-2316 (Reissue 2016) does not limit the relief the higher
     appellate court can order, because the defendant was not placed legally
     in jeopardy in the district court.

   Appeal from the District Court for Gage County, Paul W.
Korslund, Judge, Retired, on appeal thereto from the County
Court for Gage County, Steven B. Timm, Judge. Exception sus-
tained, and cause remanded for further proceedings.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellant.
 Steven J. Mercure, of Nestor & Mercure, and Lindy L.
Mahoney, Senior Certified Law Student, for appellee.
  Heavican,          C.J.,   Miller-Lerman,           Cassel,   Stacy,    and
Funke, JJ.
      Per Curiam.
                      INTRODUCTION
   On intermediate appeal from county court, the district court
vacated Steven J. Hatfield’s conviction for driving under the
influence (DUI) and granted him a new trial after determin-
ing that his warrantless blood draw was unlawful and inad-
missible in light of Birchfield v. North Dakota.1 Because we
determine that the good faith exception to the exclusionary
rule applies, we sustain the State’s exception. And because
we are not prevented from affecting the district court’s deci-
sion when it sits as an appellate court, we reverse the order
and remand the cause for further proceedings consistent with
this opinion.

 1	
      Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d
      560 (2016).
                             - 154 -
            Nebraska Supreme Court A dvance Sheets
                    300 Nebraska R eports
                       STATE v. HATFIELD
                       Cite as 300 Neb. 152

                        BACKGROUND
   On an early morning in December 2014, two deputies
with the Gage County Sheriff’s Department stopped Hatfield’s
vehicle after radar detected that it had been speeding. When a
deputy asked Hatfield for his license and registration, Hatfield
was slow to respond and would not make eye contact. Both
deputies detected an odor of alcohol coming from the vehicle,
although they were unable to determine whether the odor
came from Hatfield or one of his three passengers. Upon
inquiry, Hatfield confirmed that he had been drinking alco-
hol. And during field sobriety tests, Hatfield showed signs
of impairment during one of the tests. One of the deputies
arrested Hatfield for DUI and transported him to a hospital for
a blood draw.
   Prior to the blood draw, the arresting deputy read Hatfield
the “Post Arrest Chemical Test Advisement” form. The form
advised Hatfield that he was under arrest for DUI, that he was
required by law to submit to a chemical test of his blood for
alcohol content, and that refusal to submit to the test was a
separate criminal charge. Hatfield signed the form. According
to the nurse who drew the blood sample from Hatfield, he was
“cooperative throughout the blood draw process.” The blood
test revealed that Hatfield had an alcohol concentration above
the legal limit.
   The State charged Hatfield with DUI, and a jury convicted
him of the offense. After the county court held an enhancement
hearing and determined that this conviction was Hatfield’s sec-
ond DUI offense, the court imposed a sentence.
   Hatfield appealed his conviction to the district court. He
alleged that the county court erred by receiving certain evi-
dence and by failing to dismiss due to insufficient evidence.
After those issues had been briefed, the U.S. Supreme Court
released its opinion in Birchfield 2 and Hatfield requested that

 2	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              STATE v. HATFIELD
                              Cite as 300 Neb. 152

the district court consider that decision. Based on Birchfield,
the court found that Hatfield’s warrantless blood draw was
unlawful and inadmissible. The court therefore reversed
Hatfield’s conviction and remanded the matter for a new trial.
The court did not consider the errors assigned by Hatfield. Nor
did it consider whether Hatfield’s consent to the blood test was
voluntary or whether the good faith exception to the exclusion-
ary rule applied.
   The State appealed, and we moved the case to our docket.3
                 ASSIGNMENT OF ERROR
   The State assigns that the district court erred by vacating
Hatfield’s DUI conviction without considering whether his
blood draw was voluntary or whether the good faith exception
to the exclusionary rule applied.
                   STANDARD OF REVIEW
   [1-3] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion.4 Both the district court and a higher
appellate court generally review appeals from the county court
for error appearing on the record.5 When reviewing a judg-
ment for errors appearing on the record, an appellate court’s
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable.6
   [4,5] Application of the good faith exception to the exclu-
sionary rule is a question of law.7 On a question of law,

 3	
      See Neb. Rev. Stat. § 24-1106 (Reissue 2016).
 4	
      State v. Thalken, 299 Neb. 857, ___ N.W.2d ___ (2018).
 5	
      Id.
 6	
      Id.
 7	
      State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017), cert. denied 2018
      WL 2186231, 86 U.S.L.W. 3571 (U.S. May 14, 2018).
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                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                               STATE v. HATFIELD
                               Cite as 300 Neb. 152

an appellate court reaches a conclusion independent of the
court below.8

                           ANALYSIS
   [6] Before addressing the merits, we observe that the State
brought this appeal. Absent specific statutory authorization,
the State generally has no right to appeal an adverse ruling in
a criminal case.9 But a statutory exception to the general rule
authorizes a prosecuting attorney to request appellate review
of an adverse ruling by a district court.10 We have interpreted
§ 29-2315.01 to allow exception proceedings taken from the
district court sitting as an intermediate court of appeal.11 We
now turn to the arguments advanced in the State’s appeal.

                     Good Faith Exception
   The State assigns that the district court erred in vacating
Hatfield’s conviction without considering two matters. It con-
tends that the court should have determined whether the blood
draw was voluntary or whether the good faith exception to the
exclusionary rule applied. Because we can dispose of the mer-
its of the appeal on the basis of the good faith exception, we
need not make a determination as to the voluntariness of the
blood draw.
   [7-9] The exclusionary rule is a judicially created remedy
that generally prohibits the use of evidence obtained in viola-
tion of a defendant’s Fourth Amendment rights.12 Its purpose
is to deter police misconduct.13 Because the exclusionary rule
should not be applied to objectively reasonable law enforce-
ment activity, the U.S. Supreme Court created a good faith

 8	
      Id.
 9	
      State v. Thalken, supra note 4.
10	
      See Neb. Rev. Stat. § 29-2315.01 (Reissue 2016).
11	
      See State v. Thalken, supra note 4.
12	
      See State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).
13	
      See State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014).
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                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                                STATE v. HATFIELD
                                Cite as 300 Neb. 152

exception to the rule.14 The Birchfield decision did not directly
address whether the good faith exception should apply where
consent to a blood test is given following an incorrect advise-
ment that refusing such a test is a crime.
   [10] In State v. Hoerle,15 we concluded that the good faith
exception to the exclusionary rule applied to a warrantless
blood draw carried out prior to the Birchfield decision. We
explained that a court may decline to apply the exclusionary
rule when evidence is obtained pursuant to an officer’s objec-
tively reasonable reliance on a law that is not clearly uncon-
stitutional at the time. And we discerned no deterrent value in
suppressing the results of the blood test.
   We adhere to our reasoning in Hoerle. Here, as in Hoerle,
the blood draw was obtained in accordance with our implied
consent statute, which was not clearly unconstitutional at the
time of Hatfield’s December 2014 arrest. Consistent with
Hoerle, we conclude that the good faith exception applies to
warrantless pre-Birchfield blood draws in cases brought both
on direct appeal and in error proceedings under § 29-2315.01.
Because the good faith exception applies, the district court
erred in reversing Hatfield’s conviction.

                       Effect of Ruling
   As we noted at the outset of the analysis, the State brought
this appeal pursuant to § 29-2315.01. Because it was brought
as an exception proceeding, Neb. Rev. Stat. § 29-2316 (Reissue
2016) applies. Section 29-2316 states in part that “[t]he judg-
ment of the court in any action taken pursuant to section
29-2315.01 shall not be reversed nor in any manner affected
when the defendant in the trial court has been placed legally in
jeopardy . . . .”
   [11] In a criminal case, § 29-2316 does not prohibit a
higher appellate court from reversing a district court’s decision

14	
      State v. Hoerle, supra note 7.
15	
      See id.
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                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                               STATE v. HATFIELD
                               Cite as 300 Neb. 152

where the district court was acting as an intermediate appellate
court. We recently declared that “where the matter is brought
to us by an exception proceeding from the district court sit-
ting as an appellate court, § 29-2316 does not limit the relief
we can order, because the defendant was not placed legally
in jeopardy in that court.”16 We explained that “in a criminal
case where the district court is sitting as an appellate court in
an appeal brought by the defendant, the defendant . . . effec-
tively arrived at the district court on appeal already cloaked in
jeopardy, having been placed legally in jeopardy by the county
court.”17 Because § 29-2316 does not limit the relief we can
order, we reverse the ruling of the district court.
                          CONCLUSION
   We conclude that the good faith exception to the exclusion-
ary rule applied to the pre-Birchfield warrantless blood draw
in this case. Because the result of the blood test was admis-
sible, the district court, sitting as an appellate court, erred in
reversing Hatfield’s conviction and vacating his sentence. We
therefore sustain the State’s exception. And because § 29-2316
does not constrain us from granting relief, we reverse the dis-
trict court’s order and remand the cause to the district court for
further proceedings not inconsistent with this opinion. Upon
remand, the district court may consider the errors originally
assigned by Hatfield.
	Exception sustained, and cause remanded
	                    for further proceedings.
   Wright and K elch, JJ., not participating in the decision.

16	
      State v. Thalken, supra note 4, 299 Neb. at 880, ___ N.W.2d at ___.
17	
      Id. at 884, ___ N.W.2d at ___.
