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STATE V. MILLER

Cite as 312 Neb. 17

State of Nebraska, appellee, v. 

Dustin L. Miller, appellant.

___ N.W.2d ___

Filed July 22, 2022. No. S-21-343.

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, an appellate court reviews the trial court’s findings for 

clear error, but whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination. And where the facts are largely 

undisputed, the ultimate question is an issue of law.

2. Confessions: Appeal and Error. A district court’s finding and determination that a defendant’s statement was voluntarily made will not be set 

aside on appeal unless this determination is clearly erroneous.

3. Motions to Suppress: Appeal and Error. In determining whether a 

trial court’s findings on a motion to suppress are clearly erroneous, the 

reviewing court recognizes the trial court as the trier of fact and takes 

into consideration that the trial court has observed the witnesses testifying regarding the motion.

4. 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 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.

5. Sentences: Appeal and Error. A sentence imposed within the statutory 

limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.

Nebraska Supreme Court Online Library

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

09/23/2022 09:07 AM CDT
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6. Judges: Words and Phrases. A judicial abuse of discretion exists 

only when the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

7. Constitutional Law: Search and Seizure: Blood, Breath, and Urine 

Tests. The drawing of blood from a person’s body for the purpose of 

administering blood tests is a search of the person subject to Fourth 

Amendment constraints.

8. Constitutional Law: Search and Seizure: Warrantless Searches.

Both the Fourth Amendment to the U.S. Constitution and article I, § 7, 

of the Nebraska Constitution guarantee against unreasonable searches 

and seizures. Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated 

exceptions.

9. Warrantless Searches. The warrantless search exceptions Nebraska has 

recognized include: (1) searches undertaken with consent, (2) searches 

under exigent circumstances, (3) inventory searches, (4) searches of 

evidence in plain view, and (5) searches incident to a valid arrest.

10. Warrantless Searches: Proof. It is the State’s burden to show that a 

search falls within an exception to the warrant requirement.

11. Warrantless Searches: Police Officers and Sheriffs: Time. As a 

general matter, the exigent circumstances exception allows a warrantless search when an emergency leaves police insufficient time to seek a 

warrant.

12. Convictions: Confessions: Due Process. A defendant in a criminal case 

is deprived of due process of law if his or her conviction is founded, in 

whole or in part, upon an involuntary confession, without regard for the 

truth or falsity of the confession.

13. Confessions: Police Officers and Sheriffs: Proof. Under Jackson v. 

Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), trial 

courts must institute fair procedures to determine whether a confession 

is voluntary, because involuntary or coerced confessions cannot be introduced into evidence. At such a hearing, the State has the burden to prove 

a defendant’s statement was voluntary and not coerced. In making this 

determination, a totality of the circumstances test is applied, and factors 

to consider include the tactics used by the police, the details of the interrogation, and any characteristics of the accused that might cause his or 

her will to be easily overborne.

14. Confessions: Police Officers and Sheriffs. Coercive police activity is a 

necessary predicate to a finding that a confession is not voluntary.

15. Confessions. The question for purposes of a hearing under Jackson 

v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), is 

whether an admission or confession was voluntary, not whether it was 
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true, so questions going to the substance of a statement generally fall 

outside the scope of such hearing.

16. Trial: Evidence. The rule of completeness is concerned with the danger of admitting a statement out of context, and when this danger is 

not present, it is not an abuse of discretion for the trial court to fail to 

require the production of the remainder of the document or statement.

17. Trial: Verdicts: Appeal and Error. Harmless error review looks to the 

basis on which the trier of fact actually rested its verdict; the inquiry 

is not whether in a trial that occurred without the error a guilty verdict 

would surely have been rendered, but, rather, whether the actual guilty 

verdict rendered in the questioned trial was surely unattributable to 

the error.

18. Trial: Convictions: Evidence. When the evidence is cumulative and 

there is other competent evidence to support the conviction, the improper 

admission or exclusion of evidence is harmless beyond a reasonable 

doubt.

19. Drunk Driving: Convictions: Circumstantial Evidence. One accused 

of a crime, including the crime of driving under the influence, may be 

convicted on the basis of circumstantial evidence if, taken as a whole, 

the evidence established guilt beyond a reasonable doubt.

20. Sentences. The sentencing court is not limited to any mathematically 

applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all the facts and 

circumstances surrounding the defendant’s life.

21. ____. When imposing a sentence, the sentencing judge should consider 

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.

Appeal from the District Court for Lancaster County: Lori 

A. Maret, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, and 

Todd Molvar for appellant.

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

for appellee.

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

Papik, and Freudenberg, JJ.
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Stacy, J.

After a jury trial, Dustin L. Miller was convicted and sentenced for driving under the influence (DUI), fourth offense, 

and driving during revocation, second offense. In this direct 

appeal, he contends the trial court erred by failing to suppress 

the results of a warrantless blood test and by making certain 

evidentiary rulings regarding statements Miller made to police. 

He also contends there was insufficient evidence to support his 

convictions, and he argues his sentences are excessive. Finding 

no merit to Miller’s assigned errors, we affirm.

I. BACKGROUND

On or about February 25, 2020, police discovered Miller 

lying unconscious in a ditch at the scene of a single-vehicle 

accident. Miller was transported by ambulance to a hospital, 

where medical staff performed a warrantless blood draw, at 

the request of police. The test result showed that Miller had a 

blood alcohol content of .254 grams of alcohol per 100 milliliters of blood.

In November 2020, Miller was charged with DUI, .15 or 

over, with three prior convictions (a Class IIA felony), and 

driving during revocation, subsequent offense (a Class IIA 

felony).

1. Motion to Suppress

Miller moved to suppress the results of the blood test, arguing the warrantless blood draw was an unconstitutional search 

in violation of the U.S. and Nebraska Constitutions. Officer 

Zachary Kliegl testified at the suppression hearing.

Kliegl testified that at approximately 1 a.m. on February 

25, 2020, he was on duty and driving eastbound near 40th 

Street and Highway 2 in Lincoln, Nebraska. He noticed a 

pickup truck in the ditch on the southeast corner of the intersection that looked like it had collided with a streetlight and 

rolled into the ditch. Kliegl activated his cruiser’s overhead 

lights and stopped to inspect the accident. He determined the 

pickup truck was heavily damaged, unoccupied, and smelled 
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of alcohol. He observed debris scattered nearby, including an 

open can of beer.

Kliegl eventually discovered Miller lying in the ditch under 

some debris, approximately 100 feet west of the vehicle. Miller 

appeared to be in and out of consciousness. Kliegl asked 

Miller “if he was okay and if there was anybody else that was 

in the vehicle with him.” Miller moaned or grunted something 

in response, which Kliegl interpreted as a “yes.” Based on that 

response, Kliegl walked back toward the vehicle to search for 

others who might be injured. He did not find anyone else, so 

he returned to Miller and asked again whether there were others in the vehicle. This time, Miller responded that he was the 

only one in the vehicle. The events at the accident scene were 

recorded by a video camera in Kliegl’s cruiser.

Miller was transported to a hospital by ambulance, and 

Kliegl followed in his cruiser, leaving other officers at the 

scene. When Kliegl arrived at the hospital, staff were preparing 

to take Miller for x rays. Kliegl waited in the hospital room 

until Miller was returned. At that point, Miller was snoring and 

unresponsive. Medical personnel informed Kliegl that Miller 

had fractured vertebrae in his neck and back, and it was necessary to commence medical treatment “right away,” including 

administering fluids that could possibly alter his blood alcohol content.

Kliegl had formed an opinion that Miller was operating a 

motor vehicle while under the influence of alcohol. His opinion was based on Miller’s general condition when discovered, 

as well as the facts that Miller was the only one found at the 

accident scene, a preliminary investigation showed the pickup 

truck was registered to Miller’s mother, an open beer can was 

found at the scene, and Kliegl smelled alcohol on Miller and in 

the pickup truck at the scene. Kliegl testified that in his experience, obtaining a warrant for a blood draw could take around 3 

hours. He did not think he had enough time to obtain a warrant 

under the circumstances, due to the extent of Miller’s injuries 

and the need for medical staff to treat him with fluids that 

could affect his blood alcohol content.
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Kliegl directed medical staff to perform a blood draw on 

Miller immediately, and they did so. Before the blood draw, 

Kliegl read aloud the standard consent for blood draw, but 

Miller was not conscious at the time, and there is no contention 

that Miller actually consented to the blood draw.

On cross-examination, Kliegl testified that he was aware a 

county court judge was always on call to review requests for 

warrants and that he was aware the hospital had a substation he 

could have used to draft such a request. He also testified that 

he was not working the accident alone; two other officers were 

with him at the hospital, and other officers were present at the 

accident scene.

Based on the evidence adduced at the suppression hearing, the State argued the warrantless blood draw was validly 

obtained because the situation triggered the exigent circumstances exception to the Fourth Amendment. 1 The defense disagreed, arguing that even though Miller was unconscious, law 

enforcement could have, and should have, obtained a warrant 

for Miller’s blood sample.

The district court made an express finding that Kliegl’s 

testimony was credible and that it established the existence of 

exigent circumstances which justified the warrantless blood 

draw. The court therefore overruled the motion to suppress and 

ordered Miller to appear for trial in approximately 2 weeks.

2. Jackson v. Denno

Miller filed a pretrial motion requesting a Jackson v. Denno 2

hearing to determine whether the State intended to offer evidence of any admissions or confessions Miller made to law 

enforcement officers and, if so, to hold an evidentiary hearing 

to determine admissibility. The motion was taken up just prior 

to Kliegl’s testimony at trial, outside the presence of the jury.

1 See, Mitchell v. Wisconsin, ___ U.S. ___, 139 S. Ct. 2525, 204 L. Ed. 2d 

1040 (2019); Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. 

Ed. 2d 696 (2013); State v. Briggs, 308 Neb. 84, 953 N.W.2d 41 (2021).

2 Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).
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The State advised the court that it intended to offer evidence 

of Miller’s statements to Kliegl at the scene, and it proceeded 

to offer evidence regarding such statements. Kliegl testified 

that he asked Miller several questions at the scene, including “if he was okay,” “if he was the driver of the vehicle,” 

and “if he was injured.” Kliegl described that initially, Miller 

was “just, like, kind of groaning” in response to the questions. 

When Kliegl asked Miller if there was anyone else in the vehicle with him, he “believe[d] it sounded like [Miller] said, yes.” 

But after searching and finding no one else at the accident 

scene, Kliegl asked Miller again whether there was anyone else 

in the vehicle with him. This time, Miller gave what Kliegl 

described as a “more definite answer,” indicating that no one 

was with him. Kliegl was not sure whether Miller understood 

his questions initially, but he believed that Miller understood 

the question being asked when he responded more definitively 

that there was nobody else in the vehicle. Kliegl testified that 

he did not make any threats or promises to get Miller to speak 

with him at the scene and that Miller appeared to be speaking 

freely and voluntarily.

The audio-video recorder in Kliegl’s cruiser captured 

Kliegl’s questions and Miller’s responses at the accident scene, 

and the recording was received into evidence and played for 

the court. That exhibit shows Kliegl arriving on the scene, 

and he can be heard asking Miller several questions including, 

“You alright?”; “[A]nybody else with you?”; and “[W]hat’s 

your name?” Miller responded to these questions with an audible groan. Kliegl asked again, “Did you have a passenger with 

you?” Miller responded with two short moans, to which Kliegl 

replied, “You did? Male? Female?” and Miller moaned again 

in response. About 1 minute later, Kliegl returned and asked, 

“My man . . . [w]as anybody else in the truck with you?” 

This time Miller responded, “What?” and then replied, “No.” 

Kliegl then confirmed, “No? Just you?” Miller responded with 

a moan.
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After reviewing the exhibit, the court ruled from the bench. 

As to Miller’s responses of “What?” and “No” to Kliegl’s 

question about whether anyone else was in the pickup truck 

with him, the court found that Miller made the statements, 

that he understood what he was saying, and that the statements 

were freely and voluntarily made under all the circumstances 

and were not the product of any coercion, promise, or inducement, direct or indirect.

After the court’s ruling, the State sought clarification about 

Miller’s other responses and whether the entire video exhibit 

could be played for the jury. The court stated, “You’ll have to 

redact those other statements, as I cannot make a determination 

that [Miller] understood what he was saying when he made 

[the] initial statements.” In response to the court’s clarification, 

Miller told the court that he had no objection to the earlier 

responses, and he asked to be allowed to publish the entire 

video exhibit to the jury pursuant to the rule of completeness. 3

The court refused that request.

3. Jury Trial

The evidence adduced at trial was consistent with that 

described above. In addition, Kliegl testified that Miller was 

the only person he discovered at the accident scene and that no 

one else was observed walking near the accident scene. He also 

testified that when other officers arrived to assist, a search was 

made for other individuals and none were found.

Kliegl also testified that in his opinion, based on the evidence and his observations and training, Miller was under the 

influence of alcohol at the time of the accident. The parties 

stipulated that Miller’s operator’s license had been revoked 

for a period of 15 years, from December 6, 2016, to December 

6, 2031.

At the start of trial, Miller made a continuing objection to 

“Kliegl testifying or a video being played where . . . Miller 

3 Neb. Rev. Stat. § 27-106 (Reissue 2016).
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admits to being the driver of the vehicle at issue in this 

case.” This objection was overruled. When the State offered 

a redacted copy of Kliegl’s cruiser’s video containing only 

Miller’s statement that nobody else was in the vehicle with 

him, Miller objected based on the “involuntariness” of the 

statement. He also objected to the court’s refusal to allow the 

unredacted video under the rule of completeness. The objections were overruled, and the redacted exhibit was received and 

played for the jury. Miller then made an offer of proof which 

included the unredacted video.

During trial, Kliegl testified, without objection, about what 

Miller said at the accident scene. Kliegl testified that when he 

initially asked Miller if there was someone else in the vehicle, 

Miller responded with “like a grunt, like towards a yes.” Kliegl 

then testified that when he asked the same question again 

later, Miller responded with “just a definitive ‘No.’” On crossexamination, Kliegl admitted that the first few times he asked 

Miller questions at the scene, “all [he got] back [were] unintelligible moans.”

When the State offered the result of Miller’s blood test into 

evidence, Miller objected based on the prior motion to suppress. The court overruled the objection, and the test result was 

received into evidence. The parties stipulated that the blood 

test was otherwise properly obtained and maintained in compliance with “Title 177.”

At the conclusion of the State’s evidence, Miller moved 

for a directed verdict on both counts. The court overruled the 

motion. Miller did not testify, and he put on no evidence. A 

jury instruction conference was held, and there were no objections to the court’s instructions or the verdict forms.

Regarding the DUI charge, the jury was instructed that it 

could return one of three possible verdicts: (1) not guilty, (2) 

guilty of DUI and/or when having a concentration of .08 of 

1 gram or more by weight of alcohol per 100 milliliters of 

blood, or (3) guilty of DUI while having a concentration of .15 

of 1 gram or more by weight of alcohol per 100 milliliters of 
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blood. Additionally, with respect to Miller’s statements to law 

enforcement, the jury was instructed:

There has been evidence that [Miller] made a statement 

to a law enforcement officer. You may rely on any such 

statement only if you decide beyond a reasonable doubt 

with regard to each statement:

(1) that [Miller] made the statement; and

(2) that [Miller] understood what he was saying; and

(3) that the statement was freely and voluntarily made 

under all the circumstances surrounding its making.

If you decide that the State did not prove these three 

things beyond a reasonable doubt, then you must disregard the statement, even if you think it is true.

In closing, the defense argued there was insufficient evidence that Miller was operating the vehicle when it crashed 

and that without such evidence, Miller could not be convicted 

of either charge. The defense also emphasized Kliegl’s testimony that Miller was “moaning [and] not making very much 

sense,” and it argued the State had failed to prove beyond a 

reasonable doubt that Miller understood what he was saying when he told Klieigl that he was the only person in 

the vehicle.

4. Verdicts and Sentencing

The jury returned a verdict finding Miller guilty of nonaggravated DUI (blood alcohol content of .08 or more). It 

also found him guilty of driving during revocation. After an 

enhancement hearing at which the State proved Miller had 

three prior DUI convictions and one prior conviction for driving during revocation, Miller was found guilty of DUI, fourth 

offense, and driving during revocation, second offense. He was 

sentenced to imprisonment for not less than 3 years nor more 

than 3 years on the DUI conviction and to a consecutive term 

of imprisonment for 3 to 5 years on the conviction for driving during revocation, subsequent offense. Miller’s operator’s 

license was revoked for a period of 15 years following his 
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release from incarceration, and he was authorized to obtain an 

ignition interlock permit after 2 years.

Miller filed this timely appeal, which we moved to our 

docket on our own motion. 4

II. ASSIGNMENTS OF ERROR

Miller assigns, restated, that the district court erred in (1) 

overruling his motion to suppress, (2) finding that any of his 

statements at the accident scene were made freely and voluntarily, (3) overruling his request to admit excluded statements 

under the rule of completeness, (4) finding the evidence was 

sufficient to sustain his convictions, and (5) abusing its discretion by imposing excessive sentences.

III. STANDARD 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. 5

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. 6 And where 

the facts are largely undisputed, the ultimate question is an 

issue of law. 7

[2,3] A district court’s finding and determination that a 

defendant’s statement was voluntarily made will not be set 

aside on appeal unless this determination is clearly erroneous. 8

In determining whether a trial court’s findings on a motion to 

suppress are clearly erroneous, the reviewing court recognizes 

4 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2020).

5 State v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021).

6 Id.

7 State v. Salvador Rodriguez, 296 Neb. 950, 898 N.W.2d 333 (2017); State 

v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).

8 State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000).
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the trial court as the trier of fact and takes into consideration 

that the trial court has observed the witnesses testifying regarding the motion. 9

[4] 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. 10 The relevant question 

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. 11

[5,6] A sentence imposed within the statutory limits will not 

be disturbed on appeal in the absence of an abuse of discretion 

by the trial court. 12 A judicial abuse of discretion exists only 

when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and 

denying a just result in matters submitted for disposition. 13

IV. ANALYSIS

1. Motion to Suppress

In his first assignment of error, Miller argues the district 

court should have granted his motion to suppress the results of 

the warrantless blood test.

[7-9] It has long been recognized that the drawing of 

blood from a person’s body for the purpose of administering blood tests is a search of the person subject to Fourth 

9 State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).

10 State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022); State v. Williams, 

306 Neb. 261, 945 N.W.2d 124 (2020).

11 Id.

12 State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).

13 Id.
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Amendment constraints. 14 Both the Fourth Amendment to 

the U.S. Constitution and article I, § 7, of the Nebraska 

Constitution guarantee against unreasonable searches and seizures. 15 Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and 

well-delineated exceptions. 16 The warrantless search exceptions 

Nebraska has recognized include: (1) searches undertaken with 

consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) 

searches incident to a valid arrest. 17

[10,11] It is the State’s burden to show that a search falls 

within an exception to the warrant requirement. 18 In this case, 

the State relies exclusively on the exigent circumstances exception to justify the reasonableness of the warrantless blood 

draw. As a general matter, the exigent circumstances exception 

allows a warrantless search when an emergency leaves police 

insufficient time to seek a warrant. 19 Miller contends the State 

failed to meet its burden to prove exigent circumstances on 

this record, basically arguing that Kliegl and the other officers 

had sufficient time to secure a search warrant, and should have 

done so.

In the context of a warrantless blood draw in a DUI case, 

this court has discussed, 20 but not previously applied, the 

14 Modlin, supra note 7. See, also, Birchfield v. North Dakota, 579 U.S. 438, 

136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016); McNeely, supra note 1; Skinner 

v. Railway Labor Executives’ Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L. 

Ed. 2d 639 (1989); Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 

16 L. Ed. 2d 908 (1966).

15 Briggs, supra note 1.

16 Id.

17 Id.

18 E.g., id.

19 See, Birchfield, supra note 14; McNeely, supra note 1. See, also, State v. 

Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).

20 See State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017) (noting 

exigent circumstances may authorize warrantless blood test).
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exigent circumstances exception. Both parties rely on U.S. 

Supreme Court precedent applying the exigent circumstances 

exception in this context. We summarize those cases before 

analyzing the parties’ arguments.

(a) Schmerber v. California

The U.S. Supreme Court first addressed exigent circumstances and warrantless blood draws in Schmerber v. 

California,

 21 decided in 1966. In Schmerber, the defendant 

was injured in an automobile accident and taken to a hospital. 

At the direction of a police officer, a blood sample was taken 

from the defendant, which showed he was intoxicated. At his 

DUI trial, the defendant objected to the admission of the blood 

test results, arguing it violated his Fourth Amendment right to 

be free from an unreasonable search and seizure. Schmerber

held the blood draw was a search “within the meaning of [the 

Fourth] Amendment,” 22 and it concluded the “questions we 

must decide” are “whether the police were justified in requiring petitioner to submit to the blood test” and “whether the 

means and procedures employed in taking his blood respected 

relevant Fourth Amendment standards of reasonableness.” 23

In this respect, Schmerber noted there was probable cause 

to arrest the defendant for DUI, because the arresting officer 

smelled alcohol on his breath and noticed his eyes were bloodshot and watery. It also found, “The officer in the present case 

. . . might reasonably have believed that he was confronted 

with an emergency, in which the delay necessary to obtain a 

warrant, under the circumstances, threatened ‘the destruction of 

evidence.’” 24 The Court then stated:

We are told that the percentage of alcohol in the blood 

begins to diminish shortly after drinking stops, as the body 

21 Schmerber, supra note 14.

22 Id., 384 U.S. at 767.

23 Id., 384 U.S. at 768.

24 Id., 384 U.S. at 770.
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functions to eliminate it from the system. Particularly in 

a case such as this, where time had to be taken to bring 

the accused to a hospital and to investigate the scene of 

the accident, there was no time to seek out a magistrate 

and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol 

content in this case was an appropriate incident to petitioner’s arrest. 25

The Court in Schmerber emphasized that although it found no 

violation of the Fourth Amendment, it “reach[ed] this judgment 

only on the facts of the present record.” 26

After Schmerber, a split of authority developed on whether 

the natural dissipation of alcohol in the bloodstream established 

a per se exigency that sufficed, on its own, to justify warrantless blood tests in DUI investigations. 27 The U.S. Supreme 

Court granted certiorari in Missouri v. McNeely 28 to “resolve 

[that] split.” 29

(b) Missouri v. McNeely

In McNeely, the Supreme Court rejected the suggestion that 

the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth 

Amendment’s warrant requirement for nonconsensual blood 

testing in all drunk driving cases. The Court explained:

25 Id., 384 U.S. at 770-71.

26 Id., 384 U.S. at 772.

27 Compare, e.g., State v. Johnson, 744 N.W.2d 340 (Iowa 2008) (holding 

Schmerber did not stand for proposition that loss of evidence through 

dissipation of alcohol from suspect’s body was sufficient exigency alone 

to justify warrantless blood draw), and State v. Rodriguez, 156 P.3d 771 

(Utah 2007) (same), with State v. Shriner, 751 N.W.2d 538 (Minn. 2008) 

(holding natural dissipation of blood alcohol evidence alone constitutes 

per se exigency under Schmerber) and State v. Bohling, 173 Wis. 2d 529, 

494 N.W.2d 399 (1993) (same).

28 McNeely, supra note 1.

29 Id., 569 U.S. at 147.
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It is true that as a result of the human body’s natural 

metabolic processes, the alcohol level in a person’s blood 

begins to dissipate once the alcohol is fully absorbed and 

continues to decline until the alcohol is eliminated. . . . 

Regardless of the exact elimination rate, it is sufficient for 

our purposes to note that because an individual’s alcohol 

level gradually declines soon after he stops drinking, a 

significant delay in testing will negatively affect the probative value of the results. This fact was essential to our 

holding in Schmerber, as we recognized that, under the 

circumstances, further delay in order to secure a warrant 

after the time spent investigating the scene of the accident 

and transporting the injured suspect to the hospital to 

receive treatment would have threatened the destruction 

of evidence. . . .

But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the 

categorical rule proposed by the State and its amici. In 

those drunk-driving investigations where police officers 

can reasonably obtain a warrant before a blood sample 

can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that 

they do so. . . . We do not doubt that some circumstances 

will make obtaining a warrant impractical such that the 

dissipation of alcohol from the bloodstream will support 

an exigency justifying a properly conducted warrantless 

blood test. That, however, is a reason to decide each 

case on its facts, as we did in Schmerber, not to accept 

the “considerable overgeneralization” that a per se rule 

would reflect. 30

The McNeely majority thus declined to adopt a per se rule 

regarding exigency, reasoning that doing so would be inconsistent with the “careful case-by-case assessment of exigency” 

30 Id., 569 U.S. at 152-53, quoting Richards v. Wisconsin, 520 U.S. 385, 117 

S. Ct. 1416, 137 L. Ed. 2d 615 (1997).
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required by the totality of the circumstances test. 31 “In short,” 

the McNeely majority held, “while the natural dissipation of 

alcohol in the blood may support a finding of exigency in 

a specific case, as it did in Schmerber, it does not do so 

categorically.” 32

Justice Thomas dissented in McNeely, reasoning that “[t]he 

rapid destruction of evidence acknowledged by the parties, 

the majority, and Schmerber’s exigency determination occurs 

in every situation where police have probable cause to arrest 

a drunk driver.” 33 The dissent urged the Court to adopt a rule 

recognizing that “the natural metabolization of blood alcohol 

concentration (BAC) creates an exigency once police have 

probable cause to believe the driver is drunk.” 34

(c) Mitchell v. Wisconsin

In the 2019 case of Mitchell v. Wisconsin,

 35 the U.S. Supreme 

Court considered how the exigent circumstances exception 

applies when a suspected drunk driver is unconscious and 

therefore cannot be given a standard breath test. In Mitchell, 

the police received a report that the defendant, appearing to 

be very intoxicated, had gotten into a vehicle and driven off. 

Police found the defendant wandering near a lake, and a preliminary breath test showed his blood alcohol level was triple 

the legal limit for driving. He was arrested and transported to a 

police station for additional testing.

During transport, the defendant became lethargic and eventually lost consciousness, so police took him to a hospital. Once 

there, police read aloud the standard advisement and directed 

the medical staff to draw a blood sample for testing. The sample was drawn approximately 90 minutes postarrest, and the 

31 McNeely, supra note 1, 569 U.S. at 152.

32 Id., 569 U.S. at 156.

33 Id., 569 U.S. at 178 (Thomas, J., dissenting).

34 Id.

35 Mitchell, supra note 1.
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defendant remained unconscious while the sample was taken. 

Test results showed the defendant’s blood alcohol content was 

.222. He was charged and convicted of drunk driving offenses 

after unsuccessfully moving to suppress the results of the blood 

test. The Wisconsin Supreme Court affirmed his convictions, 

and the U.S. Supreme Court granted certiorari, describing the 

issue as “how the [exigent circumstances] exception bears on 

the category of cases . . . involving unconscious drivers.” 36

Writing for the four-justice plurality, Justice Alito described the 

issue and the holding as follows:

Today, we consider what police officers may do 

in a narrow but important category of cases: those in 

which the driver is unconscious and therefore cannot be 

given a breath test. In such cases, we hold, the exigentcircumstances rule almost always permits a blood test 

without a warrant. 37

Justice Thomas concurred with the plurality’s holding, reiterating his position in McNeely that the natural metabolization of 

alcohol in the bloodstream creates an exigency per se whenever 

there is probable cause to believe a driver is drunk.

The Mitchell plurality reasoned that the facts of cases involving unconscious drivers sat “much higher than McNeely on the 

exigency spectrum,” reasoning that the defendant’s medical 

condition “heightened the urgency” of performing the blood 

test. 38 It particularly noted that due to the defendant’s condition, he was unable to be subjected to the “‘standard evidentiary breath test’” conducted at the police station: 39

When a breath test is impossible, enforcement of the 

drunk-driving laws depends upon the administration of 

a blood test. And when a police officer encounters an 

unconscious driver, it is very likely that the driver would 

36 Id., 139 S. Ct. at 2534-35.

37 Id., 139 S. Ct. at 2531.

38 Id., 139 S. Ct. at 2533.

39 Id., 139 S. Ct. at 2534.
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be taken to an emergency room and that his blood would 

be drawn for diagnostic purposes even if the police were 

not seeking BAC information. In addition, police officers 

most frequently come upon unconscious drivers when 

they report to the scene of an accident, and under those 

circumstances, the officers’ many responsibilities—such 

as attending to other injured drivers or passengers and 

preventing further accidents—may be incompatible with 

the procedures that would be required to obtain a warrant. 

Thus, when a driver is unconscious, the general rule is 

that a warrant is not needed. 40

Mitchell held there is a “‘compelling need’” for a blood test 

of drunk driving suspects whose condition renders them unable 

to perform the standard breath test. 41 And it emphasized that 

although constant dissipation of blood alcohol levels is not 

alone enough to create an exigency, it can be enough “when 

combined with other pressing needs.” 42 The Mitchell plurality explained that “exigency exists when (1) BAC evidence is 

dissipating and (2) some other factor creates pressing health, 

safety, or law enforcement needs that would take priority over 

a warrant application.” 43 And it reasoned that both these conditions are met when a drunk driving suspect is unconscious:

Indeed, unconsciousness does not just create pressing 

needs; it is itself a medical emergency. It means that the 

suspect will have to be rushed to the hospital or similar 

facility not just for the blood test itself but for urgent 

medical care. Police can reasonably anticipate that such a 

driver might require monitoring, positioning, and support 

on the way to the hospital; that his blood may be drawn 

anyway, for diagnostic purposes, immediately on arrival; 

and that immediate medical treatment could delay (or 

40 Id., 139 S. Ct. at 2531.

41 Id., 139 S. Ct. at 2537.

42 Id.

43 Id.
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otherwise distort the results of) a blood draw conducted 

later, upon receipt of a warrant, thus reducing its evidentiary value. 44

And Mitchell further held:

When police have probable cause to believe a person 

has committed a drunk-driving offense and the driver’s 

unconsciousness or stupor requires him to be taken to the 

hospital or similar facility before police have a reasonable 

opportunity to administer a standard evidentiary breath 

test, they may almost always order a warrantless blood 

test to measure the driver’s BAC without offending the 

Fourth Amendment. We do not rule out the possibility that 

in an unusual case a defendant would be able to show that 

his blood would not have been drawn if police had not 

been seeking BAC information, and that police could not 

have reasonably judged that a warrant application would 

interfere with other pressing needs or duties. Because 

Mitchell did not have a chance to attempt to make that 

showing, a remand for that purpose is necessary. 45

With the holdings and reasoning from Schmerber, McNeely, 

and Mitchell in mind, we turn next to whether the State sufficiently proved exigent circumstances in this case. In doing so, 

we consider both the evidence adduced at the motion to suppress and the evidence offered at trial. 46

(d) State Proved Exigent Circumstances

Here, the relevant facts are largely undisputed. Kliegl discovered Miller lying in the ditch, surrounded by debris from 

a rollover accident. Miller smelled of alcohol, the wrecked 

vehicle smelled of alcohol, and an open can of beer was found 

among the debris. Miller was in and out of consciousness at 

44 Id., 139 S. Ct. at 2537-38.

45 Id., 139 S. Ct. at 2539.

46 State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019) (when motion 

to suppress is denied pretrial and objection is preserved at trial, appellate 

court considers all evidence from both trial and suppression hearings).
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the scene and was transported to the hospital for emergency 

medical care. At the hospital, Miller was unconscious and 

not communicating. Kliegl was advised by medical staff that 

Miller’s injuries were serious and required immediate medical 

treatment, including treatment that could affect Miller’s blood 

alcohol level. Based on Kliegl’s investigation, it was his opinion that Miller had been operating a vehicle under the influence of alcohol. Kliegl did not think he had sufficient time 

to obtain a warrant for a blood test, so he directed medical 

staff to perform a blood draw for purposes of testing, which 

they did.

The district court expressly found that the facts were as 

testified to by Kliegl and that his testimony was credible in 

all respects. We have reviewed those factual findings for clear 

error, and find none. And when we independently consider 

whether these facts support a finding of exigent circumstances 

sufficient to support a warrantless blood draw, 47 we conclude 

they do.

This case presents a textbook case of exigent circumstances 

under Mitchell. As that case recognized, “[w]hen a breath test 

is impossible, enforcement of the drunk-driving laws depends 

upon the administration of a blood test.” 48 Here, there was no 

evidence that officers attempted to administer a standardized 

breath test to Miller either at the scene or at the hospital, but 

the record strongly suggests this was so because Miller, like the 

driver in Mitchell, was physically incapable of performing such 

a test. He was in and out of consciousness at the accident scene 

and was unconscious at the hospital. Miller’s unconsciousness 

was itself a medical emergency, 49 and his need for immediate 

medical treatment that could affect his blood alcohol level 

created a pressing need to perform the blood draw immediately. Considering the totality of the circumstances, Kliegl 

47 See Short, supra note 5.

48 Mitchell, supra note 1, 139 S. Ct. at 2531.

49 See Mitchell, supra note 1.
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could reasonably have believed that he was confronted with 

an emergency in which the delay necessary to obtain a warrant 

for a blood draw would not only postpone necessary medical 

treatment, but would also result in the threatened destruction 

of evidence.

On this record, the district court did not err in finding 

that exigent circumstances had been proved, and the warrantless blood test was reasonable for purposes of the Fourth 

Amendment.

2. Jackson v. Denno

[12-14] A defendant in a criminal case is deprived of due 

process of law if his or her conviction is founded, in whole 

or in part, upon an involuntary confession, without regard for 

the truth or falsity of the confession. 50 In Jackson v. Denno,

 51

the U.S. Supreme Court held that a “defendant objecting to 

the admission of a confession is entitled to a fair hearing in 

which both the underlying factual issues and the voluntariness 

of his confession are actually and reliably determined.” Trial 

courts must institute fair procedures to determine whether a 

confession is voluntary, because involuntary or coerced confessions cannot be introduced into evidence. 52 At such a hearing, 

the State has the burden to prove a defendant’s statement was 

voluntary and not coerced. 53 In making this determination, a 

totality of the circumstances test is applied, and factors to consider include the tactics used by the police, the details of the 

interrogation, and any characteristics of the accused that might 

cause his or her will to be easily overborne. 54 And we have 

50 Jackson v. Denno, supra note 2.

51 Id., 378 U.S. at 380. See, Dickerson v. United States, 530 U.S. 428, 120 S. 

Ct. 2326, 147 L. Ed. 2d 405 (2000); State v. Seberger, 279 Neb. 576, 779 

N.W.2d 362 (2010).

52 State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016). See Jackson v. 

Denno, supra note 2.

53 Garner, supra note 8.

54 State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).
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repeatedly held that coercive police activity is a necessary 

predicate to a finding that a confession is not voluntary. 55

Miller filed a motion pursuant to Jackson v. Denno seeking a determination of the admissibility of “any admissions or 

confessions” he made to law enforcement. At the hearing on 

his motion, both Miller and the State asked the court to take an 

“all or nothing” approach to any statements Miller made at the 

accident scene. In other words, the parties asked the court to 

determine that either all of Miller’s statements were voluntary 

and admissible or none of them were. Presumably due to the 

manner in which the issue was presented by the parties, the 

district court considered the admissibility, under Jackson v. 

Denno, of all of Miller’s responses to Kliegl’s questions at the 

accident scene. This necessarily included what we will refer to 

as Miller’s “initial responses” (described by Kliegl as groans 

which he interpreted as statements that there were others in the 

vehicle with him), as well as what we will refer to as Miller’s 

“subsequent statements” (“What?” and “No”) in response to 

the question asking whether there was somebody else in the 

vehicle with him.

The court did not take the all-or-nothing approach the parties requested. Instead, it found that Miller’s subsequent statements were freely and voluntarily made, that Miller understood what he was saying, and that the statements were not the 

product of any threats or coercion and thus were admissible. 

But the court made no similar findings with respect to Miller’s 

initial responses, explaining that on the evidence adduced, 

it could not “make a determination that [Miller] understood 

what he was saying when he made [the] initial [responses].” 

55 See, State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018); Grant, 

supra note 52; State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014); 

State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013); State v. Landis, 

281 Neb. 139, 794 N.W.2d 151 (2011); Goodwin, supra note 54. Accord 

Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 

(1986) (“[w]e hold that coercive police activity is a necessary predicate to 

the finding that a confession is not ‘voluntary’ within the meaning of the 

Due Process Clause of the Fourteenth Amendment”).
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On that basis, the court directed the State to redact the initial 

responses from the video.

On appeal, Miller challenges the admission of his subsequent statements under Jackson v. Denno, but he does not challenge the redaction order under the same analytical framework. 

Instead, Miller challenges the exclusion of his initial responses 

under the rule of completeness. We therefore address Miller’s 

Jackson v. Denno argument now and will address his argument 

regarding the rule of completeness in the next section.

[15] Under the circumstances of this case, both Miller and 

the State treated Miller’s subsequent statements as an admission that no one else was in the vehicle with him at the time of 

the accident. In other words, those statements were viewed by 

the parties as inculpatory circumstantial evidence that Miller 

was driving the vehicle when it crashed. 56 This appeal does not 

require us to consider whether Miller’s initial responses can 

also be considered admissions or confessions, and we express 

no opinion in that regard. The question for purposes of Jackson 

v. Denno is whether an admission or confession was voluntary, 

not whether it was true, so questions going to the substance 

of a statement generally fall outside the scope of a Jackson v. 

Denno hearing. 57

On this record, and considering the totality of the circumstances, we find no clear error in the district court’s conclusions 

that Miller’s subsequent statements were voluntarily made and 

were not the product of any coercion, promise, or inducement, 

56 See, generally, State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993) 

(referring to statement subject to Jackson v. Denno analysis as inculpatory); 

Whomble v. State, 143 Neb. 667, 10 N.W.2d 627 (1943) (defining 

confession as acknowledgment of guilt and admission as acknowledgment 

of fact or circumstance tending to prove ultimate fact of guilt).

57 See, e.g., State v. Bogguess, 293 Kan. 743, 751, 268 P.3d 481, 488 

(2012) (“[a]t a Jackson v. Denno hearing, the issue before the trial court 

is whether the defendant’s statement or confession was voluntary. The 

truthfulness of the statement is not at issue. . . . Questions that go to the 

substance of the statements are outside the scope of a Jackson v. Denno

hearing”).
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direct or indirect. As stated, coercive police activity is a necessary predicate to a finding that a confession is not voluntary, 58

and we see nothing in Kliegl’s questions, tactics, or demeanor 

at the scene that can be characterized as coercive police activity. Quite to the contrary, when Kliegl arrived at the scene and 

discovered Miller lying in the ditch, he asked Miller a series of 

questions to assess the situation, determine whether Miller was 

injured, and determine whether others may be injured. We find 

no merit to Miller’s argument that the district court erred by 

finding that his subsequent statements were admissible under 

Jackson v. Denno.

3. Rule of Completeness

Next, Miller argues it was error for the court to exclude his 

offer of the unredacted video containing his initial responses 

under the rule of completeness. That rule is set out in § 27-106 

and provides:

(1) When part of an act, declaration, conversation 

or writing is given in evidence by one party, the whole 

on the same subject may be inquired into by the other. 

When a letter is read, all other letters on the same subject 

between the same parties may be given. When a detached 

act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood, or to explain the same, 

may also be given in evidence.

(2) The judge may in his discretion either require the 

party thus introducing part of a total communication to 

introduce at that time such other parts as ought in fairness to be considered contemporaneously with it, or may 

permit another party to do so at that time.

Miller argues that he was prejudiced by the district court’s 

failure to apply this rule, because the jury was allowed to hear 

his “statement that he was alone in the vehicle,” 59 but was not 

58 E.g., Hernandez, supra note 55.

59 Brief for appellant at 17.
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allowed to hear his initial responses, which Kliegl understood 

to indicate others were in the vehicle. Miller argues that if his 

initial responses had been allowed into evidence, then “the 

jury could have come to the same conclusion that Kliegl did 

initially, that [Miller] was not alone in the vehicle.” 60

[16] The rule of completeness is concerned with the danger 

of admitting a statement out of context, and when this danger 

is not present, it is not an abuse of discretion for the trial court 

to fail to require the production of the remainder of the document or statement. 61 Assuming without deciding that the rule of 

completeness was violated here, we conclude any error committed by the district court was harmless.

[17,18] Harmless error review looks to the basis on which 

the trier of fact actually rested its verdict; the inquiry is not 

whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the 

actual guilty verdict rendered in the questioned trial was surely 

unattributable to the error. 62 When the evidence is cumulative 

and there is other competent evidence to support the conviction, the improper admission or exclusion of evidence is harmless beyond a reasonable doubt. 63

Here, the jury heard the evidence that Miller contends was 

admissible under the rule of completeness. At trial, Kliegl testified, without objection, that when he initially asked Miller 

if he was alone in the vehicle, Miller responded with “like a 

grunt, like towards a yes.” Kliegl then testified that when he 

asked again later, Miller gave a more definitive “no.” And 

in response to questioning from Miller on cross-examination, 

Kliegl admitted that the first few times he asked Miller questions at the scene, “all [he got] back [were] unintelligible 

moans.” So although Miller’s initial responses were redacted 

60 Id. at 17-18.

61 See State v. Manchester, 213 Neb. 670, 331 N.W.2d 776 (1983).

62 State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).

63 State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
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from the video exhibit that was played to the jury, Kliegl 

nevertheless testified about the initial responses, including his 

understanding that Miller was indicating there were others in 

the vehicle. The jury thus heard the evidence Miller wanted to 

admit through the unredacted video. Any error in excluding the 

unredacted video was harmless beyond a reasonable doubt and 

does not warrant reversal.

4. Sufficiency of Evidence

Miller argues that the evidence adduced at trial, even when 

taken in the light most favorable to the State, was insufficient 

to support his convictions for DUI and driving during revocation. He notes that both convictions required proof he was 

operating a motor vehicle, 64 and he argues that there was insufficient evidence to prove he was operating or in actual physical 

control of the vehicle found at the accident scene. He contends 

the evidence was insufficient because no witness saw him 

driving, he was found 100 feet away from the vehicle, and the 

vehicle was not registered to him.

[19] But one accused of a crime, including the crime of 

DUI, may be convicted on the basis of circumstantial evidence 

if, taken as a whole, the evidence established guilt beyond a 

reasonable doubt. 65 In State v. Blackman,

 66 law enforcement 

found a motorcycle in a ditch along a rural county road. The 

defendant was found lying near the motorcycle with his feet 

in the ditch and his back on the roadway. When questioned by 

law enforcement, the defendant stated he had been traveling 

westbound and lost control, and he asked for help getting the 

motorcycle back on the roadway. As to whether this evidence 

was sufficient to sustain the DUI conviction, we held:

[The officer] initially observed [the defendant] lying in the 

ditch next to his motorcycle, and [the defendant] admitted 

64 See Neb. Rev. Stat. §§ 60-6,196 and 60-6,197.06 (Reissue 2021).

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

Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).

66 Blackman, supra note 65.
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to [the officer] that he had been operating the motorcycle 

on the county road immediately before he lost control and 

landed in the ditch. [The officer] observed symptoms of 

intoxication almost immediately upon encountering [the 

defendant]. There is no evidence in the record of other 

persons . . . in the area where [the defendant] was found 

by the officer, nor is there any other evidence which 

would support an inference that [the defendant] had the 

means or opportunity of ingesting alcohol from the time 

he lost control of the motorcycle until the officer found 

him lying beside it in the ditch. [The defendant] argues 

that the State did not offer evidence to exclude this possibility, but we do not regard the State’s burden of proving 

guilt beyond a reasonable doubt as requiring it to disprove 

every theoretical hypothesis other than guilt. In this case, 

it can reasonably be inferred that the deputy found [the 

defendant] where he had come to rest after losing control of his motorcycle and that [the defendant’s] state of 

intoxication at that time existed when he last operated 

the motorcycle on the county road. . . . Thus, viewing 

the evidence and all reasonable inferences therefrom in 

the light most favorable to the State, we determine that 

the evidence was sufficient to establish that [the defendant] was operating a motor vehicle while in violation of 

§ 60-6,196 . . . . 67

Similarly, circumstantial evidence that Miller was the driver of 

the crashed vehicle included the following: (1) He was the only 

person found at the accident scene, (2) he was found injured 

and lying unconscious among debris from the vehicle, (3) he 

responded “No” when asked if there was anybody else in the 

vehicle with him, (4) the vehicle was registered to Miller’s 

mother, and (5) investigators searched the accident scene and 

found no one else who could have been the driver. Viewing 

67 Id. at 949-50, 580 N.W.2d at 551. See, also, State v. Miller, 226 Neb. 576, 

412 N.W.2d 849 (1987) (finding circumstantial evidence defendant was 

driving vehicle under influence when no other persons found in area).
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this evidence in the light most favorable to the prosecution, 

a rational trier of fact could have found beyond a reasonable 

doubt that Miller was operating the vehicle. His assignment of 

error to the contrary is without merit.

5. Sentences

Finally, Miller argues that the sentences imposed were 

excessive and constituted an abuse of discretion. He argues 

that a “shorter sentence, or a sentence of probation, would 

allow [him] to support his dependents while paying off his 

overwhelming medical debt.” 68 He also argues the sentencing 

judge “made comments at sentencing that indicated that the 

sentence imposed was based, at least in part, on the judge’s 

personal experience.” 69 We address each argument in turn, and 

find neither has merit.

The record demonstrates that both of Miller’s sentences 

were well within the statutory limits, and he does not contend 

otherwise. A sentence imposed within the statutory limits will 

not be disturbed on appeal in the absence of an abuse of discretion. 70 A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition. 71

[20,21] The sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the 

sentence is necessarily a subjective judgment that includes the 

sentencing judge’s observations of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding 

the defendant’s life. 72 When imposing a sentence, the sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural 

68 Brief for appellant at 22.

69 Id.

70 Blake, supra note 12.

71 Id.

72 Id.
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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. 73 Here, the record shows that 

the trial court considered the relevant factors when imposing sentence.

Before imposing sentence, the court stated that it had 

reviewed and considered the presentence investigation report. 

That report contains information going to each of the sentencing factors. 74 The report describes a lengthy criminal history, 

including convictions for drug possession and delivery, criminal trespass, assault, forgery, shoplifting, driving under suspension, operating a motor vehicle to avoid arrest, and four prior 

convictions for DUI. In fact, at the time of sentencing in this 

case, Miller was serving a 3-year prison sentence imposed on a 

2020 DUI conviction.

Our record shows the court considered the relevant sentencing factors, the arguments at sentencing, and Miller’s allocution. The court then stated that it had determined imprisonment 

was necessary for the protection of the public because the risk 

was substantial during any period of probation that Miller 

would engage in additional criminal conduct and because a 

lesser sentence would depreciate the seriousness of his crimes 

and promote disrespect for the law. It therefore sentenced 

Miller to imprisonment for not less than 3 years nor more 

than 3 years on the DUI conviction and to a consecutive term 

of imprisonment for 3 to 5 years on the conviction for driving during revocation, subsequent offense. On this record, we 

find no abuse of discretion in the nature or length of the sentences imposed.

73 Id.

74 See Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2020) (presentence investigation report shall include circumstances of crime, offender’s history 

of delinquency and criminality, physical and mental condition, family 

situation and background, economic status, education, occupation, personal 

habits, and any other relevant matters).
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Miller also argues that when imposing sentence, the judge 

improperly relied on her personal recollection of his involvement in juvenile court, and he points to the following comments made to him by the court after allocution:

I don’t know if you remember me, but I remember you. 

I used to be a prosecutor before I became a judge, and 

I started out my career in juvenile court. And your family was in juvenile court for a long time. Judge Thorson 

really saw something in you and your brother that kept 

her continuing to give you all chance after chance after 

chance after chance. I still see that. Even the prosecutor saw that. The defense counsel saw that. Guardian ad 

litem saw that. Everybody else saw that, I think, except 

you. You do have what it takes to live a sober life. And 

just from what you said here today, I think you may be 

starting down the path, I hope, to say that alcohol is just 

something that doesn’t work for you. . . .

. . . But you did put this community at risk, and you put 

yourself at risk. . . .

. . . .

. . . I don’t think any judge wants to send someone to 

prison or jail that doesn’t need to go there. My hands are 

tied on a lot of what I can and can’t do for people, including you.

Miller does not contend that the judge’s comments or recollection of his juvenile court history were grounds for recusal, nor 

did he make any such request at the time of sentencing. But he 

argues on appeal that “[t]he judge remembered [him] and his 

family from [his] juvenile court case many years ago, a case on 

which the judge was the assigned prosecutor, and [relied] on 

this personal experience” when imposing sentence. 75

We note that information regarding Miller’s family history 

and juvenile court history was contained in the presentence 

investigation report, and therefore, it was part of the information provided to the judge in connection with sentencing. 

75 Brief for appellant at 22.
- 48 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

STATE V. MILLER

Cite as 312 Neb. 17

And while the sentencing judge’s comments indicate that she 

remembered Miller from an earlier court case, we see nothing 

in the record to suggest the judge in any way relied on her 

personal knowledge, or on any extrajudicial knowledge, when 

imposing sentence in this case. And we soundly reject Miller’s 

implication that a judge’s recollection of prior court proceedings involving the same defendant necessarily shows judicial 

bias or prejudice. 76

Miller’s juvenile history was not a matter of dispute in this 

criminal proceeding, and we see nothing suggesting that the 

judge’s recollection of his juvenile history could lead a reasonable person to question the judge’s impartiality. 77 To the contrary, we understand the court’s comments here to have been 

made in part to explain the reasons for imposing sentences of 

incarceration and in part to inspire Miller to make necessary 

changes in his life and address his substance use by emphasizing what the judge and others perceived as Miller’s potential 

for law-abiding behavior. On this record, we find no abuse of 

discretion in the court’s remarks during sentencing.

V. CONCLUSION

For the foregoing reasons, the judgment of the district court 

is affirmed.

Affirmed.

76 See Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147, 127 L. 

Ed. 2d 474 (1994) (rejecting suggestion that prejudice or bias is shown 

by opinions formed from participation in prior proceedings, stating that 

“[i]t has long been regarded as normal and proper for a judge to sit in 

the same case upon its remand, and to sit in successive trials involving 

the same defendant”). Accord, People v. Storms, 155 Ill. 2d 498, 503, 617 

N.E.2d 1188, 1190, 187 Ill. Dec. 467, 469 (1993) (“‘[m]erely having a 

previous involvement with a defendant does not, per se, require [judicial] 

disqualification’”); Wise v. State, 257 Ga. App. 211, 570 S.E.2d 656 

(2002) (holding trial judge not automatically disqualified from sitting or 

acting in criminal cases merely because, in prior employment, he or she 

prosecuted defendant in unrelated criminal proceedings).

77 Compare State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).