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09/16/2016 09:08 AM CDT




                                                         - 799 -
                                  Nebraska Supreme Court A dvance Sheets
                                          294 Nebraska R eports
                                                 STATE v. CORNWELL
                                                  Cite as 294 Neb. 799




                                         State of Nebraska, appellee, v.
                                        Chancey A. Cornwell, appellant.
                                                     ___ N.W.2d ___

                                        Filed September 16, 2016.   No. S-15-1040.

                1.	 Statutes: Appeal and Error. Regarding questions of law presented by
                     a motion to quash, an appellate court is obligated to reach a conclusion
                     independent of the determination reached by the trial court.
                2.	 Constitutional Law: Statutes. A challenge to a statute asserting that no
                     valid application of the statute exists because it is unconstitutional on its
                     face is a facial challenge.
                 3.	 ____: ____. A plaintiff can only succeed in a facial challenge by estab-
                     lishing that no set of circumstances exists under which the act would be
                     valid, i.e., that the law is unconstitutional in all of its applications.
                4.	 Constitutional Law: Statutes: Pleas: Waiver. In order to bring a
                     constitutional challenge to the facial validity of a statute, the proper
                     procedure is to file a motion to quash, and all defects not raised in a
                     motion to quash are taken as waived by a defendant pleading the gen-
                     eral issue.
                5.	 Constitutional Law: Statutes. A motion to quash is the proper method
                     to challenge the constitutionality of a statute, but it is not used to ques-
                     tion the constitutionality of a statute as applied.
                6.	 Constitutional Law: Statutes: Pleas. Challenges to the constitutional-
                     ity of a statute as applied to a defendant are properly preserved by a plea
                     of not guilty.

                 Appeal from the District Court for Lancaster County:
               Stephanie F. Stacy, Judge. Affirmed.
                    David J. Tarrell for appellant.
                  Douglas J. Peterson, Attorney General, and Nathan A. Liss
               for appellee.
                              - 800 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. CORNWELL
                        Cite as 294 Neb. 799

  Heavican, C.J., Wright, Miller-Lerman, Cassel, K elch,
and Funke, JJ.
  Heavican, C.J.
                        INTRODUCTION
   Chancey A. Cornwell was charged by information with driv-
ing under the influence and refusing to submit to a chemical
test. His motion to quash was denied, and he was convicted
following a jury trial. Cornwell appeals, and we affirm.
                  FACTUAL BACKGROUND
   On February 20, 2014, Cornwell was charged by informa-
tion with driving under the influence and refusing to submit
to a chemical test—in this case, a breath test. The record
includes a postarrest chemical test advisement form, which
noted in relevant part that the arresting officer had “the
authority to direct whether the test or tests shall be of your
breath, blood or urine, and may direct that more than one test
be given.” The arresting officer then filled out part “A” of
that form: “Request for test: I hereby direct a test of your ___
blood  x  breath ___ urine to determine the  x  alcohol ___
drug content.”
   Cornwell initially pled not guilty, but later withdrew his not
guilty plea and filed a motion to quash the information. As
relevant to the issues on appeal, Cornwell’s motion to quash
alleged a facial challenge to Neb. Rev. Stat. §§ 60-6,197 and
60-6,197.03(6) (Cum. Supp. 2014), asserting that these statutes
violated his rights under the Fourth Amendment to the U.S.
Constitution and Neb. Const. art. I, § 7, by criminalizing the
withdrawal of consent to a search and by aggravating the pen-
alty for a crime for exercising the right to withdraw his consent
to a search.
   The district court denied Cornwell’s motion to quash, and
the case proceeded to trial. Following a jury trial, Cornwell
was found guilty of driving under the influence and refusing
to submit to a chemical test. He was sentenced to 2 to 5 years’
imprisonment, and his license was revoked for 15 years. He
                                    - 801 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                             STATE v. CORNWELL
                              Cite as 294 Neb. 799

was given credit for 7 days’ time served and credit for 1 year’s
license revocation.
                ASSIGNMENT OF ERROR
  Cornwell assigns, restated, that the district court erred in
denying his motion to quash.
                 STANDARD OF REVIEW
   [1] Regarding questions of law presented by a motion to
quash, an appellate court is obligated to reach a conclusion
independent of the determination reached by the trial court.1
                            ANALYSIS
   The sole issue presented by this appeal is whether the dis-
trict court erred in denying Cornwell’s motion to quash.
   Some background is helpful. Nebraska law prohibits the
operation of a motor vehicle “[w]hile under the influence of
alcoholic liquor.”2 Section 60-6,197(1) provides:
      Any person who operates or has in his or her actual physi-
      cal control a motor vehicle in this state shall be deemed
      to have given his or her consent to submit to a chemical
      test or tests of his or her blood, breath, or urine for the
      purpose of determining the concentration of alcohol or the
      presence of drugs in such blood, breath, or urine.
In addition, the refusal to submit to a chemical test is a crime.3
Thus, a person operating a motor vehicle in Nebraska is
deemed to have consented to a chemical test, and refusing such
a chemical test is a crime in the same way that driving a motor
vehicle while under the influence of alcohol is a crime.
   Cornwell was charged with refusing to submit to a chemi-
cal test. He argues on appeal that the district court erred
in denying his motion to quash, because the chemical test
sought was a search under the Fourth Amendment to the U.S.

 1	
      See State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).
 2	
      Neb. Rev. Stat. § 60-6,196(1)(a) (Reissue 2010).
 3	
      See § 60-6,197.
                                     - 802 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                              STATE v. CORNWELL
                               Cite as 294 Neb. 799

Constitution and Neb. Const. art. I, § 7, and no warrant was
obtained to compel that search. Cornwell argued in his motion
to quash that the consent and refusal statutes criminalized and
aggravated the penalty for the charged crime based upon a
driver’s decision to withdraw his or her consent to a chemi-
cal test.
   [2-6] A challenge to a statute asserting that no valid applica-
tion of the statute exists because it is unconstitutional on its
face is a facial challenge.4 A plaintiff can only succeed in a
facial challenge by establishing that no set of circumstances
exists under which the act would be valid, i.e., that the law
is unconstitutional in all of its applications.5 In order to bring
a constitutional challenge to the facial validity of a statute,
the proper procedure is to file a motion to quash, and all
defects not raised in a motion to quash are taken as waived
by a defendant pleading the general issue.6 A motion to quash
is the proper method to challenge the constitutionality of a
statute, but it is not used to question the constitutionality of a
statute as applied.7 Instead, challenges to the constitutionality
of a statute as applied to a defendant are properly preserved
by a plea of not guilty.8 Cornwell’s challenge in this case is a
facial challenge.
   In the time since Cornwell filed his appeal, the U.S. Supreme
Court decided Birchfield v. North Dakota.9 In Birchfield, the
Court was asked to determine whether warrantless breath and
blood tests incident to arrest for drunk driving were reason-
able under the Fourth Amendment. The Court made a distinc-
tion between a breath test and a blood test, finding that law

 4	
      State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).
 5	
      Id.
 6	
      See State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
 7	
      See State v. Perina, supra note 4.
 8	
      Id.
 9	
      Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d
      560 (2016).
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                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               STATE v. CORNWELL
                                Cite as 294 Neb. 799

e­ nforcement does not need a warrant to conduct a breath test,
 but that a warrant is required for a blood test.
    The distinction made by the Court was based upon the
 relative intrusiveness of the tests. A breath test does not
 “‘implicat[e] significant privacy concerns,’”10 because the
 physical intrusion is negligible,11 the test is capable of reveal-
 ing only how much alcohol is in the subject’s breath,12 and
 participation in the test is “not an experience that is likely
 to cause any great enhancement in the embarrassment that is
 inherent in any arrest.”13
    But the Court found a blood test to be “a different matter.”14
 Blood testing requires a physical intrusion that is “significantly
 more intrusive than blowing into a tube.”15 And a blood speci-
 men places in the hands of law enforcement a sample that can
 be preserved and from which information other than alcohol
 content can be extracted.16
    Thus, under Birchfield, a suspected drunk driver can be
 subjected to a breath test without a warrant, but in order to
 perform a blood test on that same individual, a warrant must
 be secured. Moreover, where the Fourth Amendment does not
 require officers to obtain a warrant before demanding a breath
 test, the individual has no right to refuse that test. We find
 Birchfield dispositive.
    In this case, Cornwell makes a facial challenge to the
 consent and refusal statutes. To show that these statutes are
 facially unconstitutional, Cornwell must show that no set of
 circumstances exists under which they would be valid. But,
 post-Birchfield, a warrantless breath test is reasonable and

10	
      Id., 136 S. Ct. at 2176.
11	
      Id.
12	
      Birchfield v. North Dakota, supra note 9.
13	
      Id., 136 S. Ct. at 2178.
14	
      Id.
15	
      Id.
16	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                             STATE v. CORNWELL
                              Cite as 294 Neb. 799

does not run afoul of the Fourth Amendment. Nor do we find
that it runs counter to Neb. Const. art. I, § 7, which this court
has interpreted to offer no more protection than that offered
by the U.S. Constitution.17 Thus, Cornwell cannot meet the
burden imposed by his facial challenge.
   In his supplemental brief, Cornwell takes issue with the
postarrest chemical test advisement form used in this case,
suggesting that a reasonable motorist reading that form would
not be sure that only the checked test—here, a breath test and
not a blood or urine test—would be given. This argument
is apparently based on the portion of the form that provides
that the arresting officer may direct that more than one test
be given.
   It is not entirely clear whether Cornwell is making a facial
or as-applied challenge to the form, but we conclude that either
challenge fails. If the challenge is an as-applied challenge, it
fails, because the record demonstrates that the only test ever
required of Cornwell was a breath test. At no time was he ever
requested to submit to a blood or urine test. Cornwell cannot
demonstrate that his Fourth Amendment rights were violated
where the only warrantless test requested of him did not vio-
late the Fourth Amendment.
   And to the extent Cornwell makes a facial challenge to the
form, it also fails. Even assuming that such a challenge would
be valid as to the form, as distinguished from the consent and
refusal statutes themselves, we have concluded above that a
facial challenge fails, because a breath test is valid and does
not violate the Fourth Amendment.
   Cornwell’s arguments on appeal are without merit.
                           CONCLUSION
      The decision of the district court is affirmed.
                                                                  A ffirmed.
      Stacy, J., not participating.

17	
      See State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986).
