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297 Nebraska Report

STATE v. HOERLE

Cite as 297 Neb. 840

State of Nebraska, appellee, v.

Jared S. Hoerle, appella

___ N.W.2d ___

Filed September 22, 2017. No. S-16-1003.

1. Criminal Law: Motions for New Trial: Appeal and Error. In a 

criminal case, a motion for new trial is addressed to the discretion of the 

trial court, and unless an abuse of discretion is shown, the trial court’s 

determination will not be disturbed.

2. Search and Seizure. Application of the good faith exception to the 

exclusionary rule is a question of law.

3. Judgments: Appeal and Error. On a question of law, an appellate court 

reaches a conclusion independent of the court below.

4. Drunk Driving: Blood, Breath, and Urine Tests. A court must consider the totality of the circumstances to determine whether a driver’s 

consent to a blood test was freely and voluntarily given.

5. Constitutional Law: Search and Seizure: Evidence. The Fourth 

Amendment does not expressly preclude the use of evidence obtained 

in violation of its commands.

6. ____: ____: ____. The exclusionary rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally 

through its deterrent effect, rather than a personal constitutional right of 

the party aggrieved.

7. ____: ____: ____. A Fourth Amendment violation does not necessarily 

mean that the exclusionary rule applies.

8. 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.

9. Constitutional Law: Courts: Search and Seizure: Police Officers 

and Sheriffs: Evidence. A court may decline to apply the exclusionary rule when evidence is obtained pursuant to an officer’s objective 

and reasonable reliance on a law that is not clearly unconstitutional at 

the time.

Nebraska Supreme Court Online Library

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

11/09/2017 09:13 AM CST
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STATE v. HOERLE

Cite as 297 Neb. 840

Appeal from the District Court for Lancaster County: Jodi

Nelson, Judge. Affirmed

Mark E. Rappl for appellant.

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

for appellee.

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

Kelch, and Funke,

Cassel, J.

INTRODUCTION

One day after Jared S. Hoerle’s conviction for driving under 

the influence (DUI), the U.S. Supreme Court held that a blood 

test may not be administered without a warrant as a search 

incident to an arrest for DUI.1 Hoerle moved for a new trial, 

arguing that it was error to admit the result of a warrantless 

test of his blood. The district court overruled the motion, and 

Hoerle appeals. Because we determine that the good faith 

exception to the exclusionary rule applies, we affirm the 

court’s denial of a new trial.

BACKGROUND

A motorist called the 911 emergency dispatch service after 

witnessing Hoerle wreck his motorcycle. An officer responding to the scene observed clues that Hoerle may be impaired 

by alcohol, and Hoerle admitted consuming alcoholic beverages. Based on the result of a preliminary breath test, the officer determined that he needed Hoerle to submit to a chemical 

test. A phlebotomist at a hospital obtained blood from Hoerle 

at the officer’s request.

The State charged Hoerle with “DUI- .15+ (2 prior convictions).” At trial, the parties stipulated that the blood test 

1 See Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 

2d 560 (2016).
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showed a blood alcohol concentration of .195 gram of alcohol 

per 100 milliliters of blood. A jury returned a verdict finding 

Hoerle guilty of DUI and found that the State proved Hoerle 

had a concentration of .150 of 1 gram or more by weight of 

alcohol per 100 milliliters of blood. The district court proceeded with an enhancement hearing and found Hoerle guilty 

of DUI over .15 with two prior convictions.

The following day, the U.S. Supreme Court released its decision in Birchfield v. North Dakota.

2

 In that case, the Court considered “whether motorists lawfully arrested for drunk driving 

may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their 

bloodstream.”3 The Court held that the Fourth Amendment 

permits a warrantless breath test as a search incident to a lawful arrest for drunk driving, but does not allow a warrantless 

blood test as a search incident to arrest. The Court also touched 

on whether a blood test is permissible based on a driver’s 

statutory implied consent and stated that “motorists cannot be 

deemed to have consented to submit to a blood test on pain of 

committing a criminal offense.”4

Hoerle timely moved for a new trial. He detailed that the 

officer (1) acquired his blood sample without a warrant, (2) 

stated Hoerle was required to submit to a chemical blood test, 

and (3) told Hoerle refusal to submit to such test was a separate crime for which Hoerle may be charged. Hoerle claimed 

that in light of the new rule of constitutional law announced 

in Birchfield, the introduction of evidence regarding his blood 

alcohol constituted an error of law and the guilty verdict was 

not sustained by sufficient admissible evidence.

The district court held a hearing on the motion for new trial 

at which the arresting officer testified. The officer testified 

2 Id.

3 Id., 136 S. Ct. at 2172.

4 Id., 136 S. Ct. at 2186.
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that he was denied permission to use the breath-testing facility at the jail due to concerns as to whether Hoerle was “fit 

for confinement” as a result of the accident. The officer then 

transported Hoerle to a hospital so that Hoerle’s medical 

condition could be checked. Because the officer was already 

at the hospital and in order to preserve as much evidence as 

possible, he decided “to get everything done at the hospital, 

one shot.” The officer read Hoerle the postarrest chemical 

test advisement form which advised that “refusal to submit to 

[the chemical test] is a separate crime for which you may be 

charged.” The officer testified that Hoerle cooperated with his 

request for a blood sample and did not resist in any way. The 

officer did not attempt to obtain a warrant for the blood draw, 

because his knowledge at that time was that a warrant was not 

needed. The court overruled the motion.

After the district court imposed a sentence, Hoerle filed this 

appeal. We granted the State’s petition to bypass review by the 

Nebraska Court of Appeals.

ASSIGNMENT OF ERROR

Hoerle assigns that the district court abused its discretion by 

denying his motion for new trial.

STANDARD OF REVIEW

[1-3] In a criminal case, a motion for new trial is addressed 

to the discretion of the trial court, and unless an abuse of 

discretion is shown, the trial court’s determination will not 

be disturbed.5 Application of the good faith exception to the 

exclusionary rule is a question of law.6 On a question of law, 

an appellate court reaches a conclusion independent of the 

court below.7

5 State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).

6 State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014).

7 State v. Muhannad, 290 Neb. 59, 858 N.W.2d 598 (2015).
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Cite as 297 Neb. 840

ANALYSIS

Birchfield v. North Dakot

We begin with a brief review of Birchfield. The opinion 

addressed the consolidated cases of three individuals: one who 

refused a blood test, another who refused a breath test, and a 

third who submitted to a blood test after being told that the law 

required submission. Because Hoerle similarly submitted to a 

blood test after being read the postarrest chemical test advisement, we focus on the third individual’s case.

Steven Michael Beylund agreed to have his blood drawn 

after he was informed that under North Dakota’s implied 

consent advisory, refusing the blood test would itself be a 

crime punishable in the same manner as DUI and may result 

in a revocation of driving privileges for a minimum of 180 

days and up to 3 years. Beylund’s driver’s license was thereafter suspended for 2 years after an administrative hearing, 

and he appealed from that decision. Although Beylund’s case 

concerned an administrative license proceeding rather than a 

criminal proceeding, the Birchfield Court stated that “if such 

warrantless searches are constitutional, there is no obstacle 

under federal law to the admission of the results that they 

yield in either a criminal prosecution or a civil or administrative proceeding.”8

The Birchfield Court then turned to the issue of consent. The 

Court stated that “[i]t is well established that a search is reasonable when the subject consents . . . and that sometimes consent to a search need not be express but may be fairly inferred 

from context . . . .”9 But Beylund argued that his consent was 

coerced by the officer’s warning that refusing the blood test 

would itself be a crime. The Court distinguished impliedconsent laws that impose civil penalties from those imposing 

criminal penalties:

8 Birchfield v. North Dakota, supra note 1, 136 S. Ct. at 2173.

9 Id., 136 S. Ct. at 2185.
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Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil 

penalties and evidentiary consequences on motorists who 

refuse to comply. . . . [N]othing we say here should be 

read to cast doubt on [those laws].

It is another matter, however, for a State not only to 

insist upon an intrusive blood test, but also to impose 

criminal penalties on the refusal to submit to such a 

test. There must be a limit to the consequences to which 

motorists may be deemed to have consented by virtue of 

a decision to drive on public roads.10

The Court stated that in applying the reasonableness standard, 

“motorists cannot be deemed to have consented to submit to a 

blood test on pain of committing a criminal offense.”11

But the Court ultimately did not resolve the consent issue 

as a matter of law. Instead, the Birchfield Court remanded 

Beylund’s cause to the state court to reevaluate Beylund’s 

consent given the officer’s partial inaccurate advisory that the 

State could permissibly compel both blood and breath tests. 

In doing so, the Court noted that “voluntariness of consent 

to a search must be ‘determined from the totality of all the 

circumstances.’”12

Birchfield called into question the voluntariness of a motorist’s consent to a blood test when the motorist is advised 

that refusal will result in a criminal charge. But it is unclear 

whether Birchfield created a categorical rule that consent given 

after threat of criminal prosecution is per se involuntary. The 

Court’s remand suggests that it did not.

Following Birchfield, state appellate courts have taken different paths. One court determined that a warrantless blood 

draw could not be upheld based on consent after the driver 

was informed that failure to submit constituted a separate 

10 Id.

11 Id., 136 S. Ct. at 2186.

12 Id.
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crime.13 Another court followed the lead of Birchfield and 

remanded the cause to the trial court for a reevaluation of consent.14 Other courts have considered the totality of the circumstances to determine whether the driver’s consent was freely 

and voluntarily given.15

[4] We conclude that Birchfield does not make categorically invalid a warrantless blood draw based on actual consent 

when a driver is incorrectly advised that the driver is required 

to submit to such a test or will face criminal penalties for a 

refusal. Rather, a court must consider the totality of the circumstances to determine whether a driver’s consent to a blood 

test was freely and voluntarily given.

In the case before us, the timing dictated an unusual procedure. Because the Birchfield decision came after completion 

of the trial, there was no opportunity for a motion to suppress. 

Instead, the consent issue was presented through a motion for 

new trial. The district court made no express factual findings. 

No one asserts error to the lack of such findings.

Although we could discern implicit factual findings regarding consent, before doing so another course deserves our attention. If the good faith exception to the exclusionary rule applies 

to pre-Birchfield blood draws, we can resolve the appeal on 

that basis.

Exclusionary Rul

Good Faith Exce

[5-7] The Fourth Amendment does not expressly preclude 

the use of evidence obtained in violation of its commands.16

13 See State v. Schmidt, 53 Kan. App. 2d 225, 385 P.3d 936 (2016).

14 See Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016).

15 See, People v. Mason, 8 Cal. App. 5th Supp. 11, 214 Cal. Rptr. 3d 685 

(2016); State v. Charlson, 160 Idaho 610, 377 P.3d 1073 (2016); State v. 

Blackman, ___ Wis. 2d ___, 898 N.W.2d 774 (2017).

16 See, United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 

677 (1984); State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).
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The exclusionary rule “operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally 

through its deterrent effect, rather than a personal constitutional 

right of the party aggrieved.’”17 Thus, a Fourth Amendment 

violation does not necessarily mean that the exclusionary rule 

applies.18

[8] 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.19 We 

have followed suit and applied the good faith exception in a 

number of cases.20

Birchfield did not directly address whether the good faith 

exception to the exclusionary rule should apply in a situation 

where consent to a blood test is given following an incorrect 

advisement that refusal could be criminally punished. But the 

State draws guidance from the following footnote:

If the court on remand finds that Beylund did not 

voluntarily consent, it will have to address whether the 

evidence obtained in the search must be suppressed when 

the search was carried out pursuant to a state statute, see 

Heien v. North Carolina, . . . 135 S.Ct. 530, 537-539, 

190 L.Ed.2d 475 (2014), and the evidence is offered in 

an administrative rather than criminal proceeding, see 

Pennsylvania Bd. of Probation and Parole v. Scott, 524 

U.S. 357, 363-364, 118 S.Ct. 2014, 141 L.Ed.2d 344 

(1998). And as Beylund notes, remedies may be available 

to him under state law.21

17 United States v. Leon, supra note 16, 468 U.S. at 906.

18 See State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).

19 See United States v. Leon, supra note 16.

20 See, e.g., State v. Tyler, supra note 18; State v. Henderson, supra note 16; 

State v. Hill, supra note 6; State v. Bromm, 285 Neb. 193, 826 N.W.2d 270 

(2013); State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010).

21 Birchfield v. North Dakota, supra note 1, 136 S. Ct. at 2186 n.9.
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The State’s argument focuses on the first case cited in the 

footnote. In Heien v. North Carolina,

22 the Court held that an 

officer’s mistake of the law was reasonable and that thus, there 

was reasonable suspicion justifying the stop under the Fourth 

Amendment. Because there was no Fourth Amendment violation, the Heien Court did not need to consider the appropriate remedy.

The other case cited in the footnote involved application of 

the exclusionary rule. In Pennsylvania Bd. of Probation and 

Parole v. Scott,

23 the Court recognized that it had “repeatedly 

declined to extend the exclusionary rule to proceedings other 

than criminal trials.” Ultimately, the Court held that “parole 

boards are not required by federal law to exclude evidence 

obtained in violation of the Fourth Amendment.”24

Although neither of the majority opinions mentioned the 

good faith exception, the Birchfield Court’s juxtaposition of the 

two cases is significant. One case held that a stop was lawful 

because the officer’s mistake as to the law was reasonable. The 

other case, in discussing whether the exclusionary rule should 

apply in a noncriminal proceeding, emphasized that use of the 

rule is unwarranted where its deterrence benefits would not 

outweigh its social costs. Together, these cases do not foreclose application of the good faith exception where the Fourth 

Amendment violation was due to an officer’s reasonable mistake of law.

[9] A court may decline to apply the exclusionary rule 

when evidence is obtained pursuant to an officer’s objective 

and reasonable reliance on a law that is not clearly unconstitutional at the time. The U.S. Supreme Court declared 

22 Heien v. North Carolina, ___ U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475 

(2014).

23 Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363, 118 

S. Ct. 2014, 141 L. Ed. 2d 344 (1998).

24 Id., 524 U.S. at 369.
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that the exclusionary rule did not apply to evidence obtained 

by police who acted in objectively reasonable reliance on 

a statute authorizing warrantless administrative searches, 

but which was subsequently found to violate the Fourth 

Amendment.25

The Court explained the underlying rationale:

The application of the exclusionary rule to suppress 

evidence obtained by an officer acting in objectively 

reasonable reliance on a statute would have as little 

deterrent effect on the officer’s actions as would the 

exclusion of evidence when an officer acts in objectively 

reasonable reliance on a warrant. Unless a statute is 

clearly unconstitutional, an officer cannot be expected 

to question the judgment of the legislature that passed 

the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it 

prior to such a judicial declaration will not deter further 

Fourth Amendment violations by an officer who has 

simply fulfilled his responsibility to enforce the statute 

as written.26

Applying this rationale, we discern no deterrent value 

in suppressing the results of Hoerle’s blood test. The officer advised Hoerle that refusal to submit to a chemical 

test was a separate crime for which he may be charged, an 

advisement required by the statute.27 And the statute was 

not clearly unconstitutional at the time of Hoerle’s arrest in 

April 2015.

Following Birchfield, state courts are not uniform as to 

whether the good faith exception to the exclusionary rule 

should apply. At least two states have adopted the good faith 

25 See Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 

(1987).

26 Id., 480 U.S. at 349-50.

27 See Neb. Rev. Stat. § 60-6,197(5) (Cum. Supp. 2016).
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exception.28 And at least two states have determined that the 

exception did not apply.29

We are not persuaded by the reasoning of the courts declining to apply the exception. Each advanced a different rationale, 

which we discuss separately.

The Arizona Supreme Court reasoned that an officer should 

have known that a departmental practice of directing blood 

draws from DUI suspects, without making a case-specific 

determination whether a warrant could be timely secured, 

was either impermissible or at least constitutionally suspect.30

But it seems to us that law enforcement officers are generally tasked with enforcing the law as written, and it would be 

unwise to expect them to make their own judgment calls as to 

the constitutionality of such statutes. The U.S. Supreme Court 

cogently stated:

Police are charged to enforce laws until and unless 

they are declared unconstitutional. The enactment of a 

law forecloses speculation by enforcement officers concerning its constitutionality—with the possible exception 

of a law so grossly and flagrantly unconstitutional that 

any person of reasonable prudence would be bound to 

see its flaws. Society would be ill-served if its police 

officers took it upon themselves to determine which 

laws are and which are not constitutionally entitled to 

enforcement.31

The Wisconsin Supreme Court feared that if it did not suppress the evidence, officers would continue to read the incorrect advisory form to others in order to provide the basis for 

28 See, State v. Schmidt, supra note 13; State v. Reynolds, 504 S.W.3d 283 

(Tenn. 2016).

29 See, State v. Havatone, 241 Ariz. 506, 389 P.3d 1251 (2017); State v. 

Blackman, supra note 15.

30 See State v. Havatone, supra note 29.

31 Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct. 2627, 61 L. Ed. 2d 343 

(1979).
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voluntary consent.32 But as the dissent pointed out, an officer who did so after release of the majority opinion would 

be unable to rely on the good faith exception.33 To us, the 

Wisconsin dissent seems more persuasive.

Because the officer here acted in objectively reasonable reliance on a statute that had not been found unconstitutional at 

the time, excluding the results of Hoerle’s blood test would not 

serve the purpose of the exclusionary rule. We conclude that 

the good faith exception applies to warrantless pre-Birchfield

blood draws.

CONCLUSION

Because we conclude that the good faith exception applies to 

warrantless blood draws conducted prior to the U.S. Supreme 

Court’s decision in Birchfield, we find no abuse of discretion by the district court in overruling Hoerle’s motion for 

new trial.

Affirmed

32 See State v. Blackman, supra note 15.

33 See id. (Roggensack, C.J., dissenting).