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 

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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.

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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.

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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.

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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.

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