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Nebraska Supreme Court Advance S

294 Nebraska Report

STATE v. CORNWELL

Cite as 294 Neb. 799

State of Nebraska, appellee, v.

Chancey A. Cornwell, appel

___ 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 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.

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 general 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 question the constitutionality of a statute as applied.

6. Constitutional Law: Statutes: Pleas. Challenges to the constitutionality 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. Affi

David J. Tarrell for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/16/2016 09:08 AM CDT
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294 Nebraska Report

STATE v. CORNWELL

Cite as 294 Neb. 799

Heavican, C.J., Wright, Miller-Lerman, Cassel

and Funke, J

Heavican, C

INTRODUCTION

Chancey A. Cornwell was charged by information with driving 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 information 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 penalty 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 
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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 district 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 physical 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 chemical 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.
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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 chemical test.

[2-6] 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.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 reasonable under the Fourth Amendment. The Court made a distinction 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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Cite as 294 Neb. 799

enforcement 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 revealing 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 specimen 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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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 violate 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.

Affirmed

Stacy, J., not participatin

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