                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. THAYER


  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.

                                  RAY L. THAYER, APPELLANT.


                           Filed November 24, 2015.     No. A-15-427.


       Appeal from the District Court for Scotts Bluff County, LEO DOBROVOLNY, Judge, on
appeal thereto from the County Court for Scotts Bluff County, KRISTEN D. MICKEY, Judge.
Judgment of District Court affirmed.
       Todd D. Morten, Deputy Scotts Bluff County Public Defender, for appellant.
       Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.


       MOORE, Chief Judge, and IRWIN and INBODY, Judges.
       MOORE, Chief Judge.
                                       INTRODUCTION
         Ray L. Thayer appeals from the order of the district court for Scotts Bluff County, which
affirmed his conviction and sentence in the county court for driving under the influence (DUI),
first offense. Because we find that there was reasonable suspicion to believe that Thayer was
driving while under the influence of alcohol, the expansion of his traffic stop was lawful, and his
motion to suppress evidence was properly denied. We affirm.
                                        BACKGROUND
Complaint.
       On July 31, 2014, the State filed a complaint in the county court, charging Thayer with one
count of DUI, first offense, in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010), a Class W



                                               -1-
misdemeanor. The State alleged that on July 2, Thayer operated a motor vehicle while under the
influence of alcoholic liquor.
Motion to Suppress.
         Thayer filed a motion to suppress on August 20, 2014, alleging that his seizure and arrest
was not based on probable cause that a crime had been committed or was about to be committed
and thus violated his Constitutional rights.
         The county court heard Thayer’s motion to suppress on September 26, 2014. Trooper
Courtney Horak with the Nebraska State Patrol testified that she initiated a traffic stop of Thayer
on July 2, 2014 at about 6:30 p.m. for driving 81 m.p.h., 26 m.p.h. over the posted limit of 55
m.p.h. A DVD containing a recording of the traffic stop and contact between Horak and Thayer
was received in evidence. Upon making contact with Thayer, Horak asked Thayer if he had any
reason for the speed, and he said “no, not really.” Horak asked Thayer for his license, registration
and insurance. Horak had to ask Thayer a second time for his insurance card. Horak also asked
Thayer if he had been drinking, and Thayer replied that he had a beer at his friend’s house. Horak
testified that, in her training and experience, excessive speed is sometimes an indication of alcohol
impairment. After Thayer admitted he had been drinking, she considered that as a possible
explanation for speeding. According to Horak, drivers who admit to drinking sometimes downplay
the quantity of alcohol they have consumed.
         Horak informed Thayer he was getting a ticket for speeding, and she returned to her patrol
car to check Thayer’s license status, which was valid. Horak then returned to Thayer’s vehicle and
said, “Mr. Thayer, I’m going to have you jump out. I just wanna check your eyes real quick, make
sure you’re good to go, okay?” Thayer responded, “All right,” and got out of his pickup. Horak
then told him, “You’re talking to me just fine but I want to be able to say for sure when I kick you
loose that you’re good to go.” Thayer complied with Horak’s request. Horak testified that she
asked Thayer to exit his vehicle to do other testing because he admitted to her that he had been
drinking. According to Horak, when she returned to Thayer’s vehicle after checking his license
status, he was not free to leave because she had not yet issued him a citation.
         Horak directed Thayer to take a seat on the front bumper of her vehicle, and she performed
the horizontal gaze nystagmus (HGN) test. After performing the test, Horak asked Thayer if he
would mind taking a preliminary breath test (PBT), and he assented. Horak had Thayer sit in the
front passenger side of her vehicle, and they chatted while waiting for the requisite time to pass.
At some point while they waited, Thayer stated that he had had 3 beers in about 35 minutes. After
the PBT, Horak told Thayer he was at the legal limit of .08.
         On cross-examination, Horak acknowledged that excessive speed is not specifically listed
in the National Highway Traffic Safety Administration (NHTSA) manual as an indicator of
impaired driving.
         Thayer testified at the suppression hearing about Horak’s request for him to exit his vehicle
so she could check his eyes. He stated that he viewed the request as a command to get out of his
pickup and did not feel that he was free to refuse the request, take his ticket, and leave.




                                                -2-
County Court Ruling on Motion to Suppress.
        The county court denied the motion to suppress. The court concluded that Thayer’s
commission of a traffic violation by speeding 26 m.p.h. over the speed limit down a two-lane
county road and his admission to drinking alcohol “at a minimum within that same day and [the
court thought] more likely within the short period before being stopped,” gave Horak a legitimate
reason to check Thayer before allowing him to continue driving. Accordingly, the court denied
Thayer’s motion.
County Court Trial.
        Thayer waived a jury trial. At the start of the bench trial, Thayer’s counsel renewed the
motion to suppress and asked the court to take judicial notice of the previously filed motion. The
county court took judicial notice of the motion and its ruling and overruled Thayer’s renewal of
the motion.
        Horak testified about the reason for the traffic stop of Thayer and his response when she
asked if he had been drinking that day, which testimony was consistent with the testimony she
gave at the suppression hearing. Horak testified that the HGN test was the only field sobriety test
she performed because of Thayer’s age and medical issues, but no further evidence was given
concerning the nature of the medical issues. Horak further testified that when Thayer was seated
in the patrol car, Horak could smell the odor of an alcoholic beverage coming from him. Following
the receipt of the PBT result, Thayer agreed to a chemical test of his blood, and Horak transported
him to the hospital where his blood was drawn.
        The registered nurse who performed the “legal blood draw” on Thayer, using the kit
provided to him by Horak, testified that he drew Thayer’s blood using the proper protocols.
        The forensic scientist who tested Thayer’s blood testified about the procedures she used in
running Thayer’s blood sample through a gas chromatograph machine. The machine produced a
written result of .103 gram of alcohol per 100 milliliters of blood. The scientist’s testimony about
Thayer’s test results and copies of the blood alcohol report form were received into evidence
without any renewed objection by Thayer, although the court allowed Thayer to interpose a late
objection to the blood alcohol report form, which objection the court overruled.
        The county court found that the State had proven every element of the charges beyond a
reasonable doubt and found Thayer guilty of DUI, first offense. The court sentenced Thayer to
probation for 9 months, ordered him to pay a $500 fine, revoked his driver’s license for 60 days,
and found that he would be eligible for an interlock permit.
Appeal to District Court.
        Thayer appealed his conviction and sentence to the district court, asserting that the county
court erred in not sustaining his motion to suppress and in admitting evidence of his BAC at trial.
On April 29, 2015, the district court entered an order, affirming Thayer’s conviction and sentence.
It found no clear error in the county court’s finding of historical fact, and found, de novo, that
Horak had reasonable suspicion following the traffic stop to investigate further for DUI, and
affirmed the county court’s judgment in all respects.




                                               -3-
                                   ASSIGNMENT OF ERROR
       Thayer asserts that the district court erred in finding that Horak had a reasonable suspicion
to expand the scope of the stop and order Thayer out of his vehicle.
                                    STANDARD OF REVIEW
        When deciding appeals from criminal convictions in county court, an appellate court
applies the same standards of review that an appellate court applies to decide appeals from criminal
convictions in district court. State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).
        In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Piper,
289 Neb. 364, 855 N.W.2d 1 (2014). Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews independently of the trial court’s
determination. Id.
                                            ANALYSIS
        Thayer asserts that the district court erred in finding that Horak had a reasonable suspicion
to expand the scope of the stop and order Thayer out of his vehicle.
        Thayer does not contest the initial stop of his vehicle, nor could he do so. He was stopped
for speeding, and a traffic violation, no matter how minor, creates probable cause to stop the driver
of a vehicle. State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013). Once a vehicle is lawfully stopped,
a law enforcement officer may conduct an investigation reasonably related in scope to the
circumstances that justified the traffic stop. State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011).
This investigation may include asking the driver for an operator’s license and registration,
requesting that the driver sit in the patrol car, and asking the driver about the purpose and
destination of his or her travel. Id. Also, the officer may run a computer check to determine whether
the vehicle involved in the stop has been stolen and whether there are any outstanding warrants for
any of its occupants. Id.
        The question presented in this appeal is whether, based on the totality of the circumstances,
Horak’s request for Thayer to exit his vehicle before she issued the speeding citation so she could
perform a field sobriety test, was supported by a reasonable, articulable suspicion that Thayer was
under the influence of alcohol. 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. State v. Lamb, supra. Reasonable
suspicion entails some minimal level of objective justification for detention, something more than
an inchoate and unparticularized hunch, but less than the level of suspicion required for probable
cause. State v. Au, supra. Whether a police officer has a reasonable suspicion based on sufficient
articulable facts depends on the totality of the circumstances and must be determined on a
case-by-case basis. State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).
        Thayer argues that his traffic violation alone is not evidence of impairment and argues
further that his admission to having consumed one beer, without more, did not furnish reasonable
suspicion that he was impaired.



                                                -4-
         Prior to expanding the traffic stop into a DUI investigation, Horak knew that Thayer was
traveling at a very excessive speed: 81 m.p.h., which was 26 m.p.h. over the posted speed limit.
When she made contact with Thayer, she asked if he had had anything to drink that day, and Thayer
admitted to having consumed one beer at a friend’s house. Horak had to repeat her request for
Thayer’s insurance card. However, Horak did not observe any difficulty in Thayer’s speech, an
observation confirmed by this court’s review of the video. It was not until after Horak administered
the HGN test and Thayer was seated in the patrol car awaiting the PBT that Horak detected an
order of alcohol and Thayer admitted to drinking three beers in about 35 minutes. Accordingly,
we do not include these factors in our consideration of evidence supporting Horak’s reasonable
suspicion. See State v. Kellogg, 22 Neb. App. 638, 859 N.W.2d 355, (2015) (not considering
trooper’s observation of driver’s bloodshot eyes where there was no evidence that trooper made
observation prior to administering field sobriety tests).
         Horak testified, based on her training and experience, that excessive speed is sometimes an
indicator of impairment and traffic violations are “one piece of the pie,” in evaluating possible
impairment. While Thayer initially admitted to only having consumed one beer, Horak testified
that drivers sometimes downplay the amount of alcohol they have consumed. After Thayer
admitted he had been drinking, Horak considered this as a possible explanation for his excessive
speed. Because of Thayer’s admission that he had been drinking, Horak determined that further
investigation was warranted.
         Upon our de novo review, we conclude that the facts in this case were sufficient, when
viewed in their totality, to support a finding that Horak had reasonable, articulable suspicion to
justify the expansion of the traffic stop and continue to detain Thayer for further investigation into
the possibility that he was driving under the influence of alcohol. These articulable facts included
Thayer’s excessive speed without explanation, Thayer’s admission to consuming alcohol, and
Horak’s belief, based upon her training, that drivers sometimes downplay the amount of alcohol
they have consumed and alcohol consumption can possibly explain excessive speed.
         The county court did not err in overruling Thayer’s motion to suppress, and the district
court did not err in affirming the judgment of the county court.
                                          CONCLUSION
       Because there was reasonable suspicion to believe that Thayer was driving while under the
influence of alcohol, the expansion of his traffic stop was lawful, and his motion to suppress
evidence was properly denied. The district court did not err in affirming the judgment of the county
court.
                                                                                         AFFIRMED.




                                                -5-
