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291 Nebraska Reports

STATE v. WANG

Cite as 291 Neb. 632

State of Nebraska, appellee, v. 

Jin R. Wang, appellant.

___ N.W.2d ___

Filed August 14, 2015. No. S-14-671.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion 

to suppress evidence based on a claimed violation of the Fourth 

Amendment, an appellate court applies a two-part standard of review. 

Regarding historical facts, the 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 the court reviews independently of 

the trial court’s determination.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the determination made by the 

court below.

3. Drunk Driving: Blood, Breath, and Urine Tests: Police Officers and 

Sheriffs. Neb. Rev. Stat. § 60-6,199 (Reissue 2010) does not require 

an arresting officer to inform the person to be tested of his or her 

right to obtain an evaluation by an independent physician and additional testing.

4. Due Process: Drunk Driving: Blood, Breath, and Urine Tests: 

Police Officers and Sheriffs. There is no due process violation if 

the officer does not give an advisement of the statutory right to an 

independent evaluation and testing under Neb. Rev. Stat. § 60-6,199 

(Reissue 2010).

5. Constitutional Law: Drunk Driving: Blood, Breath, and Urine 

Tests: Police Officers and Sheriffs. Because there is no statutory or 

constitutional requirement that a defendant be advised of his or her 

rights under Neb. Rev. Stat. § 60-6,199 (Reissue 2010), there is no constitutional requirement that an advisement must be given in a language 

the defendant understands.
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STATE v. WANG

Cite as 291 Neb. 632

6. Statutes: Equal Protection: Discrimination. When a statute does not 

create a classification on its face, it violates equal protection only when 

the defendant can show the law was enacted or applied with a discriminatory purpose.

Appeal from the District Court for Lancaster County: Karen

B. Flowers and Robert R. Otte, Judges. Affirmed.

Mark E. Rappl for appellant.

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

for appellee.

Wright, Connolly, Stephan, McCormack, Miller-Lerman, 

and Cassel, JJ.

Miller-Lerman, J.

NATURE OF CASE

Jin R. Wang appeals his conviction in the district court for 

Lancaster County for driving under the influence (DUI), third 

offense. Wang claims that the district court erred when it overruled his motion to suppress evidence of a chemical breath 

test and admitted the evidence at trial. Wang argues that the 

evidence should have been suppressed because his alleged 

statutory right to advisement under Neb. Rev. Stat. § 60-6,199 

(Reissue 2010) and his constitutional rights to due process 

and equal protection were violated when the arresting officer 

failed to advise him, in a language he could understand, that 

he had a right to obtain an evaluation by an independent physician and additional laboratory testing. We find no error and 

affirm Wang’s conviction.

STATEMENT OF FACTS

At issue in this case is § 60-6,199 which provides:

The peace officer who requires a chemical blood, 

breath, or urine test or tests pursuant to § 60-6,197 may 

direct whether the test or tests shall be of blood, breath, 

or urine. The person tested shall be permitted to have a 
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STATE v. WANG

Cite as 291 Neb. 632

physician of his or her choice evaluate his or her condition and perform or have performed whatever laboratory 

tests he or she deems appropriate in addition to and 

following the test or tests administered at the direction 

of the officer. If the officer refuses to permit such additional test to be taken, then the original test or tests shall 

not be competent as evidence. Upon the request of the 

person tested, the results of the test or tests taken at the 

direction of the officer shall be made available to him 

or her.

Wang, who is Chinese and only speaks “some English,” was 

arrested on suspicion of driving under the influence. Wang was 

taken to a “Detox” center, where he was required to submit to 

a chemical breath test. The officer who arrested Wang read to 

him, in English, an advisement stating that under § 60-6,199, 

he was permitted to have a physician of his choice evaluate his 

condition and perform whatever laboratory tests the physician 

deemed appropriate.

Prior to trial, on October 18, 2013, Wang moved the district court to suppress evidence of the results of his breath test 

because, inter alia, he was not properly advised of his right 

to obtain testing by an independent physician. Wang claimed 

that despite an obvious language barrier, the arresting officer 

neglected to ensure that he understood his rights.

In an order filed February 6, 2014, the district court overruled Wang’s motion to suppress. The court noted first that 

although § 60-6,199 provides that a person arrested for DUI 

has a right to be evaluated by an independent physician who 

may perform additional tests, the statute includes no requirement that the person be advised of these provisions. The court 

found that despite the lack of a statutory requirement that an 

advisement be given, the officer who arrested Wang read the 

statute to Wang in English and the evidence showed that a 

copy of the statute, also in English, was posted on the wall 

of the room in which Wang was tested. The court found that 

it was “highly doubtful” Wang understood the advisement 
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STATE v. WANG

Cite as 291 Neb. 632

the officer read to him and that the officer made no effort to 

determine whether Wang understood it. However, the court 

concluded that because the statute did not require an advisement, there was no due process violation. The court noted 

that the results of the chemical breath test would be deemed 

incompetent as evidence if the State had hampered Wang’s 

efforts to obtain an independent test, but the court concluded 

that the failure to communicate the advisement to Wang in his 

first language was not the equivalent of hampering his efforts 

to exercise his right to an independent test and that therefore, 

the failure to advise Wang in a language he understood was not 

a violation of Wang’s rights.

Following a bench trial, the court found Wang guilty of 

DUI, and after an enhancement hearing, the court found that 

it was Wang’s third offense. The court sentenced Wang to 60 

days in jail and a 3-year term of probation.

Wang appeals.

ASSIGNMENT OF ERROR

Wang claims that the district court erred when it overruled his motion to suppress and allowed the results of the 

chemical breath test into evidence. He argues that the failure 

to advise him of the provisions of § 60-6,199 in a language he 

understood violated statutory, due process, and equal protection rights.

STANDARDS OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to 

suppress evidence based on a claimed violation of the 

Fourth Amendment, we apply a two-part standard of review. 

State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). 

Regarding historical facts, we review the trial court’s findings for clear error. But whether those facts trigger or violate 

Fourth Amendment protections is a question of law that we 

review independently of the trial court’s determination. State 

v. Knutson, supra.
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Cite as 291 Neb. 632

[2] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by 

the court below. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 

(2015).

ANALYSIS

Wang claims on appeal that the district court erred when 

it overruled his motion to suppress evidence of the results of 

the chemical breath test and admitted the evidence at trial. 

He argues that the evidence was obtained in violation of his 

statutory, due process, and equal protection rights because the 

officer failed to advise him, in a language he understood, that 

in accordance with § 60-6,199, he “shall be permitted to have 

a physician of his or her choice evaluate his or her condition 

and perform or have performed whatever laboratory tests he or 

she deems appropriate in addition to and following the test or 

tests administered at the direction of the officer.” We conclude 

that the district court did not err when it determined that there 

was no violation of Wang’s statutory or constitutional rights 

and when it overruled his motion to suppress and received evidence of the chemical breath test at trial.

Wang concedes that in prior cases, we have held that 

§ 60-6,199 creates no statutory right that a defendant be 

advised of the provisions therein. In State v. Klingelhoefer, 

222 Neb. 219, 225, 382 N.W.2d 366, 370 (1986), we held 

that § 60-6,199, which was then codified at Neb. Rev. Stat. 

§ 39-669.09 (Reissue 1984), “does not require the officer to 

inform the person to be tested of his privilege to request an 

independent test.” In Klingelhoefer, we cited State v. Miller, 

213 Neb. 274, 328 N.W.2d 769 (1983), and noted that in 

Miller, we had “reaffirmed” this holding, which had been followed in prior cases. 222 Neb. at 225, 382 N.W.2d at 370.

Wang urges us to review and overrule the holdings in 

Klingelhoefer and the prior cases cited therein. He contends that this court should recognize a statutory right to an 
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STATE v. WANG

Cite as 291 Neb. 632

advisement. Wang notes that in Klingelhoefer, three judges 

dissented and opined an advisement should be required and 

that two of the three judges had previously dissented in Miller. 

We decline Wang’s invitation to overrule the Klingelhoefer

line of cases.

We begin our analysis by noting that fundamental to the reasoning of the dissenting judges in Miller was their view that the 

“underlying philosophy” that had led the U.S. Supreme Court 

to require Miranda warnings applied equally to § 60-6,199. 

213 Neb. at 282, 328 N.W.2d at 774 (Krivosha, C.J., dissenting; White, J., joins). That is, they reasoned that before an 

individual can waive a constitutional right, he or she must have 

been informed of that right. The Miller dissent assumed the 

existence of a constitutional right to an independent test and 

thus a corresponding duty to advise. We decline to adopt the 

rationale of the dissent in Miller.

In considering Wang’s argument, we keep in mind the distinction between constitutional rights and statutory rights. The 

U.S. Supreme Court has made clear that the rights that are the 

subject of Miranda warnings are of constitutional dimension. 

In contrast, statutory rights, such as the independent evaluation and testing privileges in § 60-6,199, are “simply a matter 

of grace bestowed by the . . . legislature.” South Dakota v. 

Neville, 459 U.S. 553, 565, 103 S. Ct. 916, 74 L. Ed. 2d 748 

(1983). Given the nature and origin of the right to independent 

evaluation and testing, we see no basis to adopt the rationale 

of the dissent in State v. Miller, supra.

[3] Turning to the terms of § 60-6,199, we see no language 

which would support a statutory requirement of an advisement. There is no explicit statutory language requiring an 

advisement, and we do not read such a requirement into the 

statute. See State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 

788 (2014) (it is not within appellate court’s province to read 

meaning into statute that is not there). Other states that have 

found a statutory right to an advisement have based it on 

explicit language in the statute. For example, the Supreme 
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Cite as 291 Neb. 632

Court of Washington in State v. Turpin, 94 Wash. 2d 820, 

823, 620 P.2d 990, 992 (1980), noted that the Washington 

statute, Wash. Rev. Code Ann. § 46.20.308(1) (West 1970), 

explicitly provided that the arresting “‘officer shall inform 

the person of his right to refuse the test, and of his right to 

have additional tests administered by any qualified person 

of his choosing.’” See, also, Hilliard v. Elfrink, 77 Ohio St. 

3d 155, 157, 672 N.E.2d 166, 168 (1996) (citing Ohio Rev. 

Code Ann. § 4511.19(D)(3) (LexisNexis Supp. 1995), which 

provided: “‘The person tested may have a physician, a registered nurse, or a qualified technician or chemist of his own 

choosing administer a chemical test or tests in addition to any 

administered at the request of a police officer, and shall be so 

advised’”). Given the language of § 60-6,199, we agree with 

and reaffirm the holding in State v. Klingelhoefer, 222 Neb. 

219, 382 N.W.2d 366 (1986), and prior cases, that § 60-6,199 

does not require an arresting officer to inform the person to be 

tested of his or her right to obtain an evaluation by an independent physician and additional testing.

Wang raises additional arguments based on constitutional 

principles, specifically due process and equal protection. He 

contends that even if there is no statutory right to an advisement, it is a violation of constitutional due process for an 

arresting officer to fail to advise an arrestee of the right 

to independent evaluation and testing found in § 60-6,199. 

Challenges to a failure to give an advisement on due process grounds have been considered and repeatedly rejected 

by other courts. For example, in Kesler v. Department of 

Motor Vehicles, 1 Cal. 3d 74, 459 P.2d 900, 81 Cal. Rptr. 348 

(1969), the California Supreme Court stated that the legislation at issue therein did not require the arresting officer to 

advise the driver of the availability of an additional test at 

his own expense and that the principles of due process did 

not so require. The court observed that due process required 

an opportunity for additional testing but not an advisement. 

Compare Montano v. Superior Court Pima County, 149 Ariz. 
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Cite as 291 Neb. 632

385, 719 P.2d 271 (1986) (stating that due process requires 

giving advisement that independent breath testing is available 

only where state does not perform chemical tests). In view 

of the language of § 60-6,199 and constitutional principles, 

we agree with the California Supreme Court that where an 

arrestee is unimpeded, due process does not require giving 

an advisement.

We have referred to South Dakota v. Neville, 459 U.S. 553, 

103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), earlier in this opinion and again find its analysis helpful in our consideration 

of Wang’s due process argument. Neville involved the use of 

evidence of a defendant’s refusal to take a chemical test where 

the defendant had not been advised that refusal could be used 

against him in court. The U.S. Supreme Court held that the 

use of evidence of the defendant’s refusal to take a test, albeit 

unwarned, “comported with the fundamental fairness required 

by Due Process.” 459 U.S. at 566. The Court reasoned that due 

process did not require advisement of statutory, as opposed to 

constitutional, rights and that due process did not require an 

advisement of all potential consequences of a defendant’s 

choices surrounding testing.

[4,5] By similar reasoning, we conclude that there is no due 

process violation if the officer does not give an advisement 

of the statutory right to independent evaluation and testing 

under § 60-6,199. No advisement is required by the statute, 

and because the rights are statutory rather than constitutional, 

due process does not require an advisement. Because there 

is no statutory or constitutional requirement that a defendant be advised of his or her rights under § 60-6,199, there 

is no constitutional requirement that an advisement must be 

given in a language the defendant understands. Other courts 

have applied similar reasoning. In People v. Wegielnik, 152 

Ill. 2d 418, 428, 605 N.E.2d 487, 491, 178 Ill. Dec. 693, 

697 (1992), the Supreme Court of Illinois stated: “Because 

due process does not require that . . . warnings [regarding the consequences of refusal] be given at all, it does not 
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Cite as 291 Neb. 632

require that they be given in a language the defendant understands.” For the foregoing reasons, we reject Wang’s due 

process argument.

[6] Finally, Wang contends that his right to equal protection 

was violated because the advisement was given in a language 

he did not understand. His argument is based on disparate 

treatment between those who speak English and those who do 

not. The State directs us to Rodriguez v. State, 275 Ga. 283, 

565 S.E.2d 458 (2002). An argument similar to that asserted 

by Wang was rejected in Rodriguez wherein the defendant 

raised an equal protection challenge involving a statute which 

required that an implied consent notice be read to an arrestee. 

In Rodriguez, the Supreme Court of Georgia rejected the 

arrestee’s challenge and noted, inter alia, that although the 

statute required that a certain notice be read to an arrestee, 

the statute did not require that the notice be read in English. 

The Georgia court stated that “[w]hen a statute does not create a classification on its face, it only violates equal protection 

when the defendant can show the law was enacted or applied 

with a discriminatory purpose.” 275 Ga. at 286, 565 S.E.2d 

at 461.

In the present case, the Nebraska statute, § 60-6,199, does 

not require any advisement, much less require that an advisement be given in English. Therefore, the statute on its face 

does not differentiate between English speakers and others. 

Wang needed to show that, as applied, the officer’s reading 

of the advisement in English was done with a discriminatory 

purpose. The district court found that the officer’s failure to 

advise Wang in a language he understood was not the equivalent of hampering Wang’s efforts to obtain an independent 

test. We construe this as a finding that there was no discriminatory purpose behind the officer’s giving the advisement 

in English. Because the officer was not required to give an 

advisement, either statutorily or constitutionally, we agree 

with the district court’s analysis that there was no discriminatory purpose in the officer’s failure to give an advisement in 
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Cite as 291 Neb. 632

a language that Wang understood and that there was no equal 

protection violation.

CONCLUSION

The district court did not err when it determined that there 

was neither a statutory nor constitutional requirement for the 

officer to advise Wang of his right to independent evaluation 

and testing under § 60-6,199. As such, the failure to give an 

advisement in a language Wang understood was not a violation of his due process or equal protection rights, as the district court found. We therefore conclude that the district court 

did not err when it overruled Wang’s motion to suppress and 

received evidence of the results of the chemical breath test at 

trial. We affirm Wang’s conviction for DUI, third offense.

Affirmed.

Heavican, C.J., not participating.