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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. MONTOYA

Cite as 305 Neb. 581

State of Nebraska, appellee, v. 

Lorenzo Montoya, appellant.

___ N.W.2d ___

Filed April 17, 2020. No. S-19-660.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. ____: ____: ____. When deciding appeals from criminal convictions in 

county court, an appellate court applies the same standards of review 

that it applies to decide appeals from criminal convictions in district court.

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

Appeal and Error. 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. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment 

protection is a question of law that an appellate court reviews independently of the trial court’s determination.

4. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

5. Judges: Evidence: Appeal and Error. An appellate court reviews for 

abuse of discretion a trial court’s evidentiary rulings on the sufficiency 

of a party’s foundation for admitting evidence.

6. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for 

clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to admit 

evidence over a hearsay objection.

Nebraska Supreme Court Online Library

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

06/05/2020 01:07 AM CDT
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7. Constitutional Law: Witnesses: Appeal and Error. An appellate 

court reviews de novo a trial court’s determination of the protections 

afforded by the Confrontation Clause of the Sixth Amendment to the 

U.S. Constitution and article I, § 11, of the Nebraska Constitution and 

reviews the underlying factual determinations for clear error.

8. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. The relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

9. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit 

of an illegal search or seizure is inadmissible in a state prosecution and 

must be excluded.

10. Constitutional Law: Criminal Law: Police Officers and Sheriffs: 

Investigative Stops: Search and Seizure: Words and Phrases. The 

investigatory stop is limited to brief, nonintrusive detention during a 

frisk for weapons or preliminary questioning; it is considered a “seizure” 

sufficient to invoke Fourth Amendment safeguards, but because of its 

less intrusive character requires only that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspicion 

that a person has committed or is committing a crime.

11. Constitutional Law: Criminal Law: Police Officers and Sheriffs: 

Arrests: Search and Seizure: Probable Cause. Arrests are characterized by highly intrusive or lengthy search or detention, and the Fourth 

Amendment requires that an arrest be justified by probable cause to 

believe that a person has committed or is committing a crime.

12. Probable Cause: Words and Phrases. 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.

13. Investigative Stops: Police Officers and Sheriffs: Probable Cause.

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.

14. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.

When a motion to suppress is denied pretrial and again during trial on 

renewed objection, an appellate court considers all the evidence, both 

from trial and from the hearings on the motion to suppress.
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STATE v. MONTOYA

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15. Investigative Stops: Motor Vehicles. The witnessing of a driving violation, however minor, is sufficient to support a stop.

16. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: 

Probable Cause. Reasonable proof of the accuracy of the radar equipment indicating to the law enforcement officer that the defendant was 

speeding need not be demonstrated in order to support reasonable suspicion for a stop of the vehicle for speeding.

17. ____: ____: ____: ____. The appropriate inquiry for an investigatory stop for speeding is whether a reasonable police officer had a 

minimal level of objective justification for the belief that speeding had 

occurred.

18. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. A 

failure to object to evidence at trial, even though the evidence was the 

subject of a previous motion to suppress, waives the objection, and a 

party will not be heard to complain of the alleged error on appeal.

19. Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof.

The four foundational elements which the State must establish by reasonable proof as foundation for the admissibility of a breath test in a 

driving under the influence prosecution are as follows: (1) that the testing device was working properly at the time of the testing, (2) that the 

person administering the test was qualified and held a valid permit, (3) 

that the test was properly conducted under the methods stated by the 

Department of Health and Human Services, and (4) that all other statutes 

were satisfied.

20. Administrative Law: Blood, Breath, and Urine Tests: Records: 

Proof. Where the records of the maintenance of a machine are relied 

on to prove that the machine was properly maintained for purposes 

of providing foundation for breath test results, the records admitted 

at trial must show by satisfactory evidence that the inspections complied with all requirements of title 177, chapter 1, of the Nebraska 

Administrative Code.

21. Administrative Law: Appeal and Error. The construction of the regulations is a matter of law in connection with which an appellate court 

has an obligation to reach an independent determination regardless of 

the ruling of the court below.

22. Administrative Law. For purposes of construction, a rule or regulation 

of an administrative agency is generally treated like a statute.

23. Statutes: Appeal and Error. An appellate court will not resort to 

interpretation to ascertain the meaning of statutory words that are plain, 

direct, and unambiguous.

24. Statutes: Legislature: Intent. A collection of statutes pertaining to a 

single subject matter are in pari materia and should be conjunctively 
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considered and construed to determine the intent of the Legislature, so 

that different provisions are consistent, harmonious, and sensible.

25. Statutes. It is impermissible to follow a literal reading that engenders 

absurd consequences where there is an alternative interpretation that 

reasonably effects a statute’s purpose.

26. Administrative Law: Blood, Breath, and Urine Tests: Proof.

Amended certificates of analysis to correct clerical errors provide satisfactory evidence that the inspections of an approved breath testing 

device complied with the requirements of title 177 of the Nebraska 

Administrative Code.

27. Constitutional Law: Hearsay. Only testimonial statements cause the 

declarant to be a witness within the meaning of the Confrontation 

Clause.

28. Rules of Evidence. Unless the regularly conducted activity of a business is the production of evidence for use at trial, business records are 

not testimonial.

29. Constitutional Law: Hearsay: Blood, Breath, and Urine Tests.

Neither original simulator solution certifications relating to maintenance 

of breath testing devices nor amended certifications are testimonial for 

purposes of the Confrontation Clause, because the simulator solution 

certifications are prepared in a routine manner without regard to any 

particular defendant.

30. Sentences: Appeal and Error. Absent an abuse of discretion by the trial 

court, an appellate court will not disturb a sentence imposed within the 

statutory limits.

31. ____: ____. Where a sentence imposed within the statutory limits is 

alleged on appeal to be excessive, the appellate court must determine 

whether a sentencing court abused its discretion in considering and 

applying the relevant factors as well as any applicable legal principles 

in determining the sentence to be imposed.

32. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

33. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the 

amount of violence involved in the commission of the crime.

34. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 
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demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

35. Sentences: Rules of Evidence. The sentencing phase is separate and 

apart from the trial phase, and the traditional rules of evidence may be 

relaxed following conviction so that the sentencing authority can receive 

all information pertinent to the imposition of sentence.

36. Sentences: Evidence. A sentencing court has broad discretion as to 

the source and type of evidence and information which may be used 

in determining the kind and extent of the punishment to be imposed, 

and evidence may be presented as to any matter that the court deems 

relevant to the sentence.

37. Sentences. It is permissible for a sentencing court to consider the information that a defendant has been charged with but not yet tried for allegedly illegal acts committed after the offense for which the defendant is 

being sentenced.

38. Drunk Driving. Whether or not there are passengers in a vehicle, driving under the influence presents a serious threat to public safety.

39. Sentences: Appeal and Error. It is not the function of an appellate 

court to conduct a de novo review of the record to determine whether a 

sentence is appropriate.

Appeal from the District Court for Lancaster County, 

Andrew R. Jacobsen, Judge, on appeal thereto from the 

County Court for Lancaster County, Thomas E. Zimmerman, 

Judge. Judgment of District Court affirmed.

Joe Nigro, Lancaster County Public Defender, and Sarah J. 

Safarik, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

The defendant appeals his conviction and sentence for driving under the influence, which were affirmed on intermediate appeal to the district court. The defendant argues that the 
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STATE v. MONTOYA

Cite as 305 Neb. 581

county court should have granted his motions to suppress 

challenging his stop for lack of reasonable suspicion, his arrest 

for lack of probable cause, and the results of the test of his 

breath alcohol content because the machine used was not at the 

time of its calibration accompanied by a certificate of analysis 

of the wet bath solutions containing the name of the person 

who actually tested the solutions as required by the rules and 

regulations of Nebraska’s Department of Health and Human 

Services. Amended certificates of analysis were later obtained, 

which listed the correct name of the person who tested the 

solutions. The defendant also asserts that the evidence was 

insufficient to support his conviction and that his sentence 

was excessive.

BACKGROUND

Lorenzo Montoya was charged in the county court for 

Lancaster County with one count of operating a motor vehicle 

while under the influence, in violation of Neb. Rev. Stat. 

§ 60-6,196 (Reissue 2010), by operating or being in actual 

physical control of a motor vehicle while under the influence 

of alcoholic liquor or of any drug or when he had “a concentration of eight-hundredths of one gram or more by weight 

of alcohol per two hundred ten liters of his or her breath,” 

on or about March 12, 2017. Montoya was also charged with 

having one or more prior convictions under Neb. Rev. Stat. 

§ 60-6,197.02 (Cum. Supp. 2018), having committed one prior 

offense in November 2008 and another in April 2008.

Stop and Arrest

At trial, Trooper Michael Thorson of the Nebraska State 

Patrol testified that he first observed Montoya’s vehicle on 

March 12, 2017, at approximately 1:50 a.m., traveling in front 

of him going the same direction. Montoya’s vehicle appeared 

to be traveling faster than the 35-mile-per-hour speed limit. 

Thorson also observed the vehicle cross over the center line. 

According to Thorson, the road was curved, but the weather 

and road conditions were normal.
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Thorson waited until the vehicle was at a good location for 

radar detection and used his radar to detect the vehicle’s speed. 

Thorson testified that he is trained at estimating speeds and is 

certified in the operation of radar devices. Thorson testified 

that, as required, he had checked his radar at the beginning 

of his shift on March 12, 2017, with tuning forks to ensure it 

was working properly. The radar displayed that the vehicle was 

traveling at 50 miles per hour.

Thorson initiated a traffic stop. Montoya was the driver 

of the vehicle. There were passengers in the front passenger 

seat and in the back. When Thorson approached the stopped 

vehicle, he immediately detected a distinct odor of alcoholic 

beverage. He noticed that Montoya’s eyes were bloodshot and 

glossy, which Thorson explained was “typical for someone 

who’s been drinking.”

Thorson asked Montoya to sit in the passenger seat of the 

police cruiser, where Thorson administered a horizontal gaze 

nystagmus test. Thorson testified that it is his usual practice to 

conduct this test inside his police cruiser in order to eliminate 

outside distractions such as lights. Thorson described that he 

and Montoya faced each other during the test. Thorson testified 

that Montoya demonstrated six out of six of the possible clues 

the test looks for. According to Thorson, observation of four 

out of the six impairment clues indicates a high probability 

that the individual “is under the influence of alcohol at a .10 or 

above.” Observing more clues indicates that the individual has 

an even higher breath alcohol concentration.

Thorson also conducted the walk-and-turn test on Montoya. 

Thorson testified that Montoya exhibited two out of two of 

the standardized clues for intoxication during the instructional 

phase of the test and five out of eight of the clues during the 

walking phase of the test. According to Thorson, demonstrating 

only two out of these eight clues is considered failing the test.

After conducting the horizontal gaze nystagmus and the 

walk-and-turn tests, Thorson asked Montoya if he wished to 

participate in the one-legged stand test. Montoya declined.
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STATE v. MONTOYA

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Montoya had initially reported to Thorson during the stop 

that he had consumed only one “tall boy.” Montoya later 

reported during the stop that, between 11:30 p.m. and 1:45 

a.m., he had consumed three “tall boys,” each containing 24 to 

32 ounces of beer.

Thorson arrested Montoya and took him to a nearby facility 

where Montoya’s breath alcohol content could be tested by a 

DataMaster machine. The DataMaster tests a sample of a person’s breath with an infrared detector to determine a person’s 

breath alcohol content. The test was conducted approximately 

1 hour after Montoya’s last reported drink. Thorson followed 

the appropriate checklist to ensure proper operation of the test. 

The test showed that Montoya had a concentration of .134 of a 

gram of alcohol per 210 liters of breath.

Thorson testified that he is trained in driving under the influence investigation and certified in performing a DataMaster 

test. He has 12 years of experience in which he has conducted 

approximately 3,000 driving under the influence investigations. Thorson opined that Montoya was under the influence 

of alcohol when he operated his motor vehicle on March 

12, 2017.

DataMaster

Officer Grant Powell testified at trial that he is the DataMaster 

maintenance supervisor for Lancaster County. He conducted 

the inspections and calibration check of the DataMaster that 

tested Montoya’s breath sample.

The purpose of calibration verification is to ensure that the 

DataMaster machine is accurately reading the alcohol content 

of breath samples. Rules and regulations of the Department 

of Health and Human Services, which appear in title 177 of 

the Nebraska Administrative Code, require that calibration 

must occur within 40 days prior to the subject sample. Powell 

described that the process utilized by Lancaster County law 

enforcement and approved under title 177 involves two tests 

with wet bath water and alcohol mixtures, one containing a target value of .080 and the other of .150. The solutions produce 
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a vapor at the target values when heated to the approximate 

temperature of exhaled breath.

The wet bath simulator solutions used by Lancaster County 

law enforcement are provided by a company in North Carolina, 

RepCo Marketing (RepCo). When shipped, the simulator solutions are accompanied by certificates of analysis which contain information required by the regulations, including the 

name of the person who prepared, tested, and supplied the 

solution.

Powell conducted an inspection of the DataMaster subsequently used to test Montoya’s breath alcohol content within 

the required 40-day period. The digital display, operational 

lights, operational condition, and printer all passed their 

required testing. Powell testified that the DataMaster machine 

used to test Montoya’s breath sample was calibrated within 

the required 40-day period and that it passed both the internal 

check and the wet bath solution check. Powell signed a certification so reflecting.

Powell elaborated that the DataMaster in question was calibrated using simulator solutions from lots 16801 and 16104, 

which were accompanied by certificates of analysis from 

RepCo certifying that the solutions were accurate for their 

target values. The certificates of analysis originally accompanying the simulator solutions stated that a RepCo employee, 

Alma Palmer, had prepared, tested, and supplied the simulator 

solutions contained in those lots. On April 19, 2018, Powell 

became aware that the person who had tested the solutions in 

lots 16801 and 16104 was not the person whose name appeared 

on the certificates of analysis. On May 7, RepCo sent amended 

certificates of analysis for those lots stating that a RepCo 

employee, Colby Hale, not Palmer, was the person who had 

prepared, tested, and supplied the simulator solutions. The 

amended certificates were created to put the person’s name on 

them who had actually tested those solutions. Nothing else in 

the amended certificates was different from the original certificates of analysis.
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STATE v. MONTOYA

Cite as 305 Neb. 581

Powell testified that he had no concerns about the accuracy of the target values for the simulator solutions in lots 

16801 and 16104 or about whether the solutions were working correctly when he conducted the relevant calibration of 

the DataMaster used to conduct the test on Montoya’s breath 

sample. Powell noted that the solutions were tested not just at 

RepCo, but also by a separate company. Further, the solutions 

were run through four different DataMaster machines, each 

with their own unique internal reference standards, and the 

solutions did not test outside of the 5-percent margin of error 

on any of the four machines.

Powell noted that the “test card” for Montoya’s breath 

sample showed a normal breath flow rate, a successful blank 

test and internal standard check, two analyses of the breath 

sample without any noted errors, and then another successful 

blank test. Powell testified that in his professional opinion the 

DataMaster utilized to test Montoya’s breath alcohol content 

was in proper working order on the date of the test, March 

12, 2017.

Motion to Suppress Evidence Obtained 

as Result of Stop

Before trial, on October 31, 2017, Montoya had moved to 

suppress all fruits of the stop of his vehicle that was allegedly 

without reasonable suspicion or probable cause, in violation 

of the 4th and 14th Amendments to the U.S. Constitution, 

article 1, section 7, of the Nebraska Constitution; and Nebraska 

statutes.

Thorson’s testimony at the pretrial hearing on the motion 

largely mirrored that given at trial. He testified in more detail 

regarding his training in the operation of the radar and how 

the radar in his police cruiser works. He described the annual, 

more sophisticated calibration test of his radar.

Thorson testified at the pretrial hearing that Montoya’s 

vehicle was 300 to 500 feet ahead of him when he first saw 

it. Thorson was traveling the speed limit and saw the vehicle 

getting further and further away from him. There were no 
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other vehicles in the area. Thorson testified that it was his 

usual practice to visualize the speed of a vehicle before taking 

a Doppler reading and to put that in his report. Thorson noted 

that “[f]or whatever reason,” he did not include his visual 

estimation of Montoya’s speed in his report, and that therefore, “I’m not going to sit up here and speculate as to what 

my visual estimation was at the time.” Thorson testified that a 

“good Doppler tone” is a consistent high-pitched noise, which 

indicates that there are no outside influences such as obstacles 

or bad weather interfering with the device’s readings. There 

was a good Doppler tone when he took the radar reading of 

Montoya’s vehicle.

The court overruled the pretrial motion to suppress. At the 

beginning of trial, Montoya asked for a standing objection 

based on an alleged lack of reasonable suspicion for the stop, 

which the court granted. Also, during Thorson’s testimony 

at trial, Montoya renewed his objection to any admission of 

evidence derived from the stop. The trial court overruled the 

renewed objections.

Motion to Suppress Evidence Obtained 

as Result of Arrest

Montoya had also moved before trial to suppress all evidence 

resulting from his warrantless arrest, because law enforcement lacked probable cause and, therefore, the arrest violated 

Montoya’s rights under the 4th and 14th Amendments to the 

U.S. Constitution; article 1, § 7, of the Nebraska Constitution; 

and Nebraska statutes.

At the pretrial hearing on the motion, Thorson did not dispute defense counsel’s assertion that the National Highway 

Traffic Safety Administration training manual specifies that 

the horizontal gaze nystagmus test shall be conducted while 

the subject is standing. Thorson testified, however, that during his training course he was told it would not negatively 

impact the validity of the test if the subject was seated rather 

than standing.
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Thorson further testified at the pretrial hearing that after 

Montoya failed the horizontal gaze nystagmus test and the 

walk-and-turn test, he had Montoya sit in his vehicle for a 

15-minute observation period before administering a preliminary breath test. Thorson checked Montoya’s mouth both at 

the beginning and at the conclusion of the observation period. 

At the conclusion of the observation period, Thorson asked 

Montoya if he had regurgitated any stomach fluid, belched, 

eaten anything, or put anything into his mouth while Thorson 

was not looking. Montoya responded that he had burped. 

Thorson asked Montoya if he had regurgitated “any type of 

stomach fluid whatsoever” when he burped, and Montoya 

answered that he had not. Thorson then administered the preliminary breach test, which showed a breath alcohol content 

of .176.

Thorson explained that it is not part of the mandatory protocol for the observation period to ask whether the subject has 

regurgitated stomach fluid or belched. Thorson explained that 

it was his understanding based on consultations with others in 

law enforcement that burping without regurgitating stomach 

fluid does not affect the test. Thorson agreed with defense 

counsel, however, that it could impact the test if the subject 

burped up something that was not solid like vomit or regurgitation, and which contained alcohol. Thorson testified that if the 

subject in any way indicates that something may have come 

up out of the subject’s stomach, then he restarts the observation time.

Defense counsel argued that the results of the horizontal 

gaze nystagmus test could not support probable cause because 

Montoya was not standing during the test. Further, recorded 

conversation in the video, wherein Thorson asked Montoya to 

“[t]ry to straighten your head out,” indicated there were issues 

with Montoya’s being positioned correctly for the test. Defense 

counsel also argued that the preliminary breath test could not 

create probable cause because Montoya had burped. Though 

Montoya had indicated upon Thorson’s questioning that he had 
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not “regurgitated in his mouth,” Montoya had elaborated that 

he would have let it out and not swallowed it, had he done so. 

According to defense counsel, this exchange did not eliminate 

the possibility that something had come up into Montoya’s 

mouth that could have impacted the test. According to defense 

counsel, without the results of the preliminary breath test and 

the horizontal gaze nystagmus test, the remaining indicia of 

impairment observed by Thorson would be insufficient to 

establish probable cause.

The court overruled the pretrial motion to suppress. At trial, 

Montoya did not renew the motion to suppress the fruits of the 

arrest for an alleged lack of probable cause.

Motion to Suppress Datamaster Results 

for Lack of Foundation

In a separate motion, Montoya had also moved before trial 

to suppress the results of the DataMaster breath test for the reason that the test was administered without proper compliance 

with Neb. Rev. Stat. §§ 27-104 and 29-822 (Reissue 2016) 

and 60-6,201 (Reissue 2010), as well as title 177. The pretrial 

motion specifically challenged the DataMaster results on the 

ground that the 40-day check of the DataMaster was conducted 

without valid certificates of analysis for either lot 16801 or lot 

16104, because the certificates of analysis falsely listed Palmer 

as the person who tested the solutions. The evidence presented 

at the pretrial hearing was similar to that at trial. The court 

overruled the motion.

At the beginning of trial, Montoya asked for a standing 

objection based on the failure of the certificates of analysis to 

comply with title 177, which was granted. Montoya renewed 

his objection at trial during the admission of the results of 

Montoya’s breath test, on the grounds that (1) the DataMaster 

test was out of compliance with title 177, (2) the amended 

certificates contained inadmissible hearsay and were not business records because they were not created near the time 

of the event, and (3) the failure to have Hale available for 
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cross-examination violated the Confrontation Clause. The court 

again overruled the motion.

Verdict and Sentence

Montoya was found guilty. At the sentencing hearing, the 

court found that Montoya had two prior convictions of driving 

under the influence, making this his third offense. The State 

noted at sentencing that Montoya had been arrested twice 

since March 12, 2017, the date of the underlying offense; 

once for driving under the influence and the other time for 

driving during revocation and false reporting. Defense counsel brought to the court’s attention the fact that Montoya 

had recently received a diagnosis of “alcohol use disorder” 

and that he had an upcoming job interview. Defense counsel 

also pointed out that Montoya had not yet been convicted 

of the charged crimes relating to the arrests occurring after 

March 12.

The trial court noted that it was giving “consideration” to 

the charges Montoya was currently facing, “which certainly 

you haven’t been convicted of.” The court sentenced Montoya 

to a jail term of 180 days, a fine of $1,000, and a 15-year 

license revocation with the ability to apply for an interlock 

device permit.

Appeal to District Court

Montoya appealed to the district court, assigning that the 

county court erred in overruling his three motions to suppress, 

in finding the evidence sufficient to support the jury’s verdict, 

and by imposing an excessive sentence. The district court 

affirmed the conviction and sentence. Montoya appealed to 

the Nebraska Court of Appeals, and we moved the case to our 

docket.

ASSIGNMENTS OF ERROR

Montoya assigns that the district court erred by (1) affirming the county court’s order that denied his motion to suppress 

fruits of the stop, (2) affirming the county court’s order that 
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denied his motion to suppress fruits of his arrest, (3) affirming 

the county court’s order that denied his motion to suppress the 

DataMaster results for lack of foundation, (4) finding sufficient 

evidence to support Montoya’s conviction, and (5) finding that 

Montoya’s sentence was not excessive.

STANDARD OF REVIEW

[1] In an appeal of a criminal case from the county court, the 

district court acts as an intermediate court of appeals, and its 

review is limited to an examination of the record for error or 

abuse of discretion. 1

[2] When deciding appeals from criminal convictions in 

county court, we apply the same standards of review that 

we apply to decide appeals from criminal convictions in district court. 2

[3] 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. 

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protection is a question of 

law that an appellate court reviews independently of the trial 

court’s determination. 3

[4] In proceedings where the Nebraska Evidence Rules apply, 

the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the 

rules make discretion a factor in determining admissibility. 4

[5] We review for abuse of discretion a trial court’s evidentiary rulings on the sufficiency of a party’s foundation for 

admitting evidence. 5

1 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

2 Id.

3 State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).

4 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

5 Id.
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[6] Apart from rulings under the residual hearsay exception, we review for clear error the factual findings underpinning a trial court’s hearsay ruling and review de novo the 

court’s ultimate determination to admit evidence over a hearsay 

objection. 6

[7] An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation 

Clause of the Sixth Amendment to the U.S. Constitution and 

article I, § 11, of the Nebraska Constitution and reviews the 

underlying factual determinations for clear error. 7

[8] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. 8 The relevant question 

for an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. 9

ANALYSIS

Montoya asserts that the district court erred by affirming 

the county court’s orders denying his motions to suppress the 

fruits of the stop, to suppress the fruits of the arrest, and to 

suppress the DataMaster test results for lack of foundation. He 

also asserts that there was insufficient evidence to support his 

conviction and that his sentence was excessive. We disagree 

with Montoya’s arguments and affirm the judgment of the district court.

6 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

7 State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019).

8 State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).

9 Id.
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Motions to Suppress Under 

Fourth Amendment

[9] Montoya’s motions to suppress the fruits of the stop 

and to suppress the fruits of the arrest were brought under the 

Fourth Amendment. Both the Fourth Amendment to the U.S. 

Constitution and article I, § 7, of the Nebraska Constitution 

guarantee against unreasonable searches and seizures. 10

Evidence obtained as the fruit of an illegal search or seizure 

is inadmissible in a state prosecution and must be excluded. 11

There are three tiers of police encounters under Nebraska 

law. 12 The first tier of police-citizen encounters involves no 

restraint of the liberty of the citizen involved, but, rather, the 

voluntary cooperation of the citizen is elicited through noncoercive questioning. 13 This type of contact does not rise to 

the level of a seizure and therefore is outside the realm of 

Fourth Amendment protection. 14 Only the second and third 

tiers of police-citizen encounters are seizures sufficient to 

invoke the protections of the Fourth Amendment to the U.S. 

Constitution. 15

[10] The second category, the investigatory stop, as defined 

by the U.S. Supreme Court in Terry v. Ohio,

 16 is limited to 

brief, nonintrusive detention during a frisk for weapons or preliminary questioning. 17 This type of encounter is considered a 

“seizure” sufficient to invoke Fourth Amendment safeguards, 

but because of its less intrusive character requires only that the 

stopping officer have specific and articulable facts sufficient to 

10 State v. Hartzell, supra note 3.

11 Id.

12 State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).

13 Id.

14 Id.

15 Id.

16 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

17 State v. Schriner, supra note 12.
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give rise to reasonable suspicion that a person has committed or 

is committing a crime. 18

[11] The third type of police-citizen encounters, arrests, is 

characterized by highly intrusive or lengthy search or detention. 19 The Fourth Amendment requires that an arrest be justified 

by probable cause to believe that a person has committed or is 

committing a crime. 20

The stop of Montoya’s vehicle after the radar detected he 

was speeding was a second-tier encounter. Montoya argues that 

the evidence was insufficient to support reasonable suspicion 

for the stop because Thorson did not memorialize in his police 

report his visual estimation of Montoya’s traveling speed and 

because his radar gun could, in theory, have malfunctioned. We 

find no merit to this argument.

[12-14] 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. 21 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. 22 When a motion to suppress is 

denied pretrial and again during trial on renewed objection, an 

appellate court considers all the evidence, both from trial and 

from the hearings on the motion to suppress. 23

[15] The witnessing of a driving violation, however minor, 

is sufficient to support a stop. 24 Although we have held that the 

accuracy of the radar equipment must be demonstrated in order 

to support a conviction for speeding—if the evidence was based 

18 Id.

19 Id.

20 Id.

21 State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).

22 Id.

23 State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

24 See State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018).
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on the radar readings 25—we have never held that a police report 

containing a preradar visual estimation of speed is necessary to 

demonstrate such accuracy. Rather, reasonable proof that the 

particular radar equipment employed on a specific occasion was 

accurate and functioning properly is all that is required. 26

[16,17] More to the point, reasonable proof of the accuracy 

of the radar equipment indicating to the law enforcement officer 

that the defendant was speeding need not be demonstrated in 

order to support reasonable suspicion for a stop of the vehicle 

for speeding. 27 The appropriate inquiry for an investigatory stop 

for speeding is whether a reasonable police officer had a minimal level of objective justification for the belief that speeding 

had occurred.

Thorson testified that he had checked his police cruiser’s 

radar device at the beginning of his shift to ensure it was working properly, he waited until the best moment to take the radar 

reading, there was a good Doppler tone, and the radar read that 

Montoya was driving 50 miles per hour in a 35-mile-per-hour 

zone. This provided ample circumstances demonstrating that 

the stop was based on more than an inchoate and unparticularized hunch.

We conclude, like the county court and the district court on 

intermediate appeal, that the radar reading gave Thorson reasonable suspicion to stop Montoya’s vehicle for speeding. We 

find it unnecessary to reach the question of whether Thorson’s 

observation of the vehicle crossing the centerline also supported reasonable suspicion for the stop. And Montoya does 

not challenge the continuation of the second-tier detention 

based on Thorson’s observations that led him to administer the 

field sobriety tests. The county court did not err in overruling 

Montoya’s motion to suppress the fruits of the stop, and the 

district court did not err in affirming that ruling.

25 See State v. Snyder, 184 Neb. 465, 168 N.W.2d 530 (1969).

26 State v. Kudlacek, 229 Neb. 297, 426 N.W.2d 289 (1988).

27 See Taylor v. Wimes, 10 Neb. App. 432, 632 N.W.2d 366 (2001).
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Montoya also asserts on appeal that the fruits of the thirdtier encounter, the arrest, should have been suppressed because 

Thorson lacked probable cause. Montoya argues that Thorson 

lacked probable cause to arrest him for driving under the 

influence because Montoya was seated while Thorson performed the horizontal gaze nystagmus, there was no video of 

Thorson’s administering the horizontal gaze nystagmus test to 

confirm it was performed correctly, and Thorson did not know 

if Montoya had regurgitated anything containing alcohol during the observation period for the preliminary breath test.

[18] Montoya did not preserve this error for appellate review. 

A failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives 

the objection, and a party will not be heard to complain of the 

alleged error on appeal. 28

Foundation for DataMaster Results 

and Confrontation Clause

Montoya next argues that the county court should have 

granted his motion to suppress the DataMaster test results, 

because the certificates of analysis accompanying the calibration solutions originally did not contain the name of the person 

who actually tested them. Montoya argues that the test results 

were thus supported by insufficient foundation because there 

is no authority under title 177 for amended certificates and 

the amended certificates did not “accompany” the solutions 

in strict compliance with title 177. 29 He also argues that the 

admission of the amended certificates violated the Confrontation 

Clause because he had no opportunity to confront Hale.

[19] The four foundational elements which the State must 

establish as foundation for the admissibility of a breath test in 

a driving under the influence prosecution are as follows: (1) 

that the testing device was working properly at the time of the 

28 State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).

29 Brief for appellant at 30.
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testing, (2) that the person administering the test was qualified 

and held a valid permit, (3) that the test was properly conducted 

under the methods stated by the Department of Health and 

Human Services, and (4) that all other statutes were satisfied. 30

Reasonable proof is all that is required to meet the foundational requirements. 31

[20] Section 60-6,201(3) provides that “[t]o be considered 

valid,” breath tests “shall be performed according to methods 

approved by the Department of Health and Human Services.” 

The rules and regulations of the Department of Health and 

Human Services relating to the analysis for the determination 

of alcohol content in blood or breath are contained in title 177, 

chapter 1, of the Nebraska Administrative Code. We have held 

with regard to the admission of breath sample test results where 

the records of the maintenance of a machine are relied on to 

prove that the machine was properly maintained, the records 

admitted at trial must show by satisfactory evidence that the 

inspections complied with all requirements of title 177. 32

[21-25] The construction of the regulations is a matter of 

law in connection with which an appellate court has an obligation to reach an independent determination regardless of the 

ruling of the court below. 33 For purposes of construction, a rule 

or regulation of an administrative agency is generally treated 

like a statute. 34 An appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, 

direct, and unambiguous. 35 A collection of statutes pertaining 

to a single subject matter are in pari materia and should be 

30 State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017).

31 See State v. Kudlacek, supra note 26.

32 State v. Bullock, 223 Neb. 182, 388 N.W.2d 505 (1986).

33 See In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 

(2019).

34 State v. McIntyre, 290 Neb. 1021, 863 N.W.2d 471 (2015).

35 Shelter Mut. Ins. Co. v. Freudenburg, 304 Neb. 1015, 938 N.W.2d 92 

(2020).
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conjunctively considered and construed to determine the intent 

of the Legislature, so that different provisions are consistent, 

harmonious, and sensible. 36 It is impermissible to follow a literal reading that engenders absurd consequences where there 

is an alternative interpretation that reasonably effects a statute’s purpose. 37

The DataMaster is an approved breath testing device 38 and, 

under the regulations, must be calibrated by the maintenance 

officer every 40 days and within 40 days prior to an analysis. 39 Section 008 encompasses the “List of Approved Methods, 

Breath Testing Instruments, Calibration Devices, and Internal 

Reference Standards.” Before placement into service at a testing site, the “internal quartz standard” of the DataMaster shall 

have the calibration checked with an alcohol wet bath simulator solution or dry gas standard. 40 The regulations outline how 

testing device calibration and calibration verification shall be 

performed. 41 The regulations further specify that the wet bath 

simulator solution “must be accompanied by a certificate of 

analysis” and that the certificate of analysis “must contain” certain information, including the “[n]ame of the person who tested 

the solution.” 42

In State v. Krannawitter,

 43 we held in the context of a motion 

for new trial that the discovery that the wrong name had been 

listed in the original calibration certificates did not mean the 

DataMaster test results would probably have been inadmissible. We explained that the discovery of the name error was 

36 Id.

37 Id.

38 See 177 Neb. Admin. Code, ch. 1, § 008 (2016).

39 See 177 Neb. Admin. Code, ch. 1, §§ 009 and 010 (2016).

40 See 177 Neb. Admin. Code, ch. 1, § 008.03A (2016).

41 See 177 Neb. Admin. Code, ch. 1, § 008.04 (2016).

42 See 177 Neb. Admin. Code, ch. 1, § 008.04A (2016).

43 State v. Krannawitter, ante p. 66, 939 N.W.2d 335 (2020).
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accompanied by amended calibration certificates containing the 

correct name, which we held were independent foundational 

evidence supporting the admission of the DataMaster test results. 

We noted that whether there is sufficient foundation is a question 

for the trial court, and the trial court had found that the foundational elements were met by the amended certificates.

The trial court likewise found here that the foundational elements for the admission of Montoya’s breath test results had 

been met, and we find no error in its judgment. In considering 

whether the trial court properly overruled a renewed objection 

at trial to evidence on the ground of lack of foundation, we 

consider the evidence submitted at trial as well as the evidence 

submitted at the pretrial hearing on the objection. 44 Though the 

name listed for the person who tested the solutions was originally incorrect, the certificates of analysis listed the correct name 

of the person who tested them by the time of the admission of 

the test results at trial.

[26] In this context of a clerical error, we disagree with 

Montoya’s suggestion that to “accompan[y]” under § 008.04A 

is limited to the moment the solution is shipped to the relevant law enforcement agency. Although Montoya is correct that there is no reference to “amended certificates” in 

title 177, it does not follow that they are impermissible. The 

solutions utilized in calibrating the DataMaster within 40 

days prior to the test of Montoya’s breath sample have at all 

times been accompanied by certificates of analysis containing all the categories of information required under title 177. 

There is nothing in title 177 suggesting that clerical errors 

in certificates of analysis cannot be corrected. The inflexibility Montoya proposes could have the absurd consequence 

that a DataMaster test could be deemed unreliable despite 

undisputed evidence at the time of trial that the records of 

maintenance of the machine complied with all regulatory 

requirements. We hold that amended certificates of analysis 

44 See State v. Piper, supra note 23.
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to correct clerical errors provide satisfactory evidence that 

the inspections of an approved breath testing device complied 

with the requirements of title 177.

[27] We also disagree with Montoya’s suggestion that the 

amended certificates were inadmissible to provide foundation for the DataMaster test results because they violated the 

Confrontation Clause. The Confrontation Clause provides, in relevant part: “In all criminal prosecutions, the accused shall enjoy 

the right . . . to be confronted with the witnesses against him 

. . . .” 45 Only testimonial statements “cause the declarant to be 

a ‘witness’ within the meaning of the Confrontation Clause.” 46

“It is the testimonial character of the statement that separates 

it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation 

Clause.” 47 If the statements are nontestimonial, then no further 

Confrontation Clause analysis is required. 48

[28,29] In Melendez-Diaz v. Massachusetts,

 49 the U.S. 

Supreme Court said that unless the regularly conducted activity 

of a business is the production of evidence for use at trial, business records are not testimonial. We have accordingly held that 

neither original simulator solution certifications 50 nor amended 

certifications 51 are testimonial for purposes of the Confrontation 

Clause. In either case, the simulator solution certifications are 

prepared in a routine manner without regard to any particular 

defendant. 52 In Krannawitter, we explained that there was no 

45 U.S. Const. amend. VI. Accord Davis v. Washington, 547 U.S. 813, 126 S. 

Ct. 2266, 165 L. Ed. 2d 224 (2006).

46 Davis v. Washington, supra note 45, 547 U.S. at 821.

47 Id.

48 State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007).

49 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. 

Ed. 2d 314 (2009).

50 See State v. Fischer, supra note 48.

51 See State v. Krannawitter, supra note 43.

52 See State v. Fischer, supra note 48.
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indication either on the face of the amended certificates or in the 

testimony at trial that the amended certificates at issue in that 

case were prepared for a particular criminal proceeding. 53 That 

is also true here.

The amended certificates provided satisfactory evidence that 

the inspections of the DataMaster complied with the requirements of title 177, and their admission did not violate the 

Confrontation Clause. The trial court did not err in overruling 

Montoya’s motion to suppress the DataMaster test results for 

lack of foundation, and the district court did not err in affirming the order of the county court.

Sufficiency of Evidence

Montoya’s challenge to the sufficiency of the evidence 

depends upon the success of his argument that the DataMaster 

test results were inadmissible. Having concluded that the 

DataMaster test results demonstrating .134 of a gram of alcohol per 210 liters of Montoya’s breath were admissible, we find 

the evidence sufficient to support Montoya’s conviction for 

driving under the influence.

Excessive Sentence Challenge

Lastly, Montoya argues that his sentence to a jail term of 

180 days was excessive. Montoya’s sentence was within the 

statutory limits. The statutory penalty range was a mandatory 

minimum of 90 days’ imprisonment and a $1,000 fine and a 

maximum of 1 year’s imprisonment and a $1,000 fine. 54 It 

is also required that a person convicted of driving under the 

influence who has had two prior convictions shall, as part of 

the judgment of conviction, have his or her operator’s license 

revoked for a period of 15 years. 55

[30-32] Absent an abuse of discretion by the trial court, an 

appellate court will not disturb a sentence imposed within the 

53 State v. Krannawitter, supra note 43.

54 See Neb. Rev. Stat. § 28-106(1) (Reissue 2016).

55 Neb. Rev. Stat. § 60-6,197.03(4) (Cum. Supp. 2018).
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statutory limits. 56 Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate 

court must determine whether a sentencing court abused its 

discretion in considering and applying the relevant factors as 

well as any applicable legal principles in determining the sentence to be imposed. 57 An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable 

or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 58

[33,34] In determining a sentence to be imposed, relevant 

factors customarily considered and applied are the defendant’s 

(1) age, (2) mentality, (3) education and experience, (4) social 

and cultural background, (5) past criminal record or record of 

law-abiding conduct, and (6) motivation for the offense, as well 

as (7) the nature of the offense and (8) the amount of violence 

involved in the commission of the crime. 59 The appropriateness 

of a sentence is necessarily a subjective judgment and includes 

the sentencing judge’s observation of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding the 

defendant’s life. 60

[35-37] Montoya asserts that the county court improperly 

considered the fact that he committed acts after March 12, 

2017, leading to charges of crimes related to driving under the 

influence, but on which he has not been tried. The sentencing 

phase is separate and apart from the trial phase, and the traditional rules of evidence may be relaxed following conviction 

so that the sentencing authority can receive all information 

pertinent to the imposition of sentence. 61 A sentencing court 

has broad discretion as to the source and type of evidence and 

56 State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).

57 State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019).

58 Id.

59 Id.

60 Id.

61 State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
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information which may be used in determining the kind and 

extent of the punishment to be imposed, and evidence may be 

presented as to any matter that the court deems relevant to the 

sentence. 62 It is permissible for a sentencing court to consider 

the information that a defendant has been charged with but not 

yet tried for allegedly illegal acts committed after the offense 

for which the defendant is being sentenced. 63 And the court’s 

statements from the bench indicate it gave appropriate weight 

to the fact that Montoya had not actually been convicted of the 

charged crimes.

Montoya also argues that his sentence was excessive in light 

of his efforts at obtaining employment and his recent diagnosis with an “alcohol use disorder” as a result of his initiative 

to receive treatment. Montoya asserts, further, that the court 

did not adequately take into account that no one was injured 

during the commission of his crime, no children were in the 

vehicle, and he was cooperative with law enforcement after he 

was stopped.

[38] Causing bodily injury while driving under the influence 

is a separate crime with a different sentencing range; 64 the sentencing range for the crime Montoya was charged with already 

takes into account that no one was physically harmed. Although 

Montoya did not have children in the vehicle, there were two 

adult passengers placed at risk. And whether or not there are 

passengers in a vehicle, driving under the influence presents a 

serious threat to public safety. 65

[39] Montoya’s cooperation and his efforts toward employment and treatment were weighed by the sentencing court 

against the gravity of this third-time offense endangering public 

safety. It is not the function of an appellate court to conduct a 

62 State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).

63 See, State v. Becker, supra note 57; State v. Williams, 282 Neb. 182, 802 

N.W.2d 421 (2011).

64 See Neb. Rev. Stat. § 60-6,198 (Cum. Supp. 2018).

65 See State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005).
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de novo review of the record to determine whether a sentence 

is appropriate. 66

Like the district court, we find no abuse of discretion in the 

sentence imposed.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court, which found no error in the challenged rulings 

by the trial court.

Affirmed.

66 State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019).