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STATE v. JASA

Cite as 297 Neb. 822

State of Nebraska, appellee, v. 

Jamos M. Jasa, appellant.

___ N.W.2d ___

Filed September 22, 2017. No. S-16-989.

1. 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 

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

2. Administrative Law: Statutes: Appeal and Error. The meaning and 

interpretation of statutes and regulations are questions of law which an 

appellate court resolves independently of the lower court’s conclusion.

3. Constitutional Law: Search and Seizure: Investigative Stops: 

Arrests: Probable Cause. The Fourth Amendment guarantees the right 

to be free of unreasonable search and seizure. This guarantee requires 

that an arrest be based on probable cause and limits investigatory stops 

to those made upon an articulable suspicion of criminal activity.

4. Criminal Law: Investigative Stops: Motor Vehicles: Police Officers 

and Sheriffs. A traffic stop requires only that the stopping officer have 

specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime.

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

Probable Cause. If an officer has probable cause to stop a traffic violator, the stop is objectively reasonable.

6. ____: ____: ____: ____. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.

7. Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct—although such 

Nebraska Supreme Court Online Library

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

10/13/2017 12:10 AM CDT
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correctness is based on a ground or reason different from that assigned 

by the trial court—an appellate court will affirm.

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

The four foundational elements which the State must establish as a 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.

9. Statutes. Statutory language is to be given its plain and ordinary 

meaning.

10. Statutes: Legislature: Intent: Appeal and Error. An appellate court 

will not look beyond a statute to determine the legislative intent when 

the words are plain, direct, or unambiguous.

11. Appeal and Error. In appellate proceedings, the examination by the 

appellate court is confined to questions which have been determined by 

the trial court.

Appeal from the District Court for Lancaster County: Susan

I. Strong, Judge. Affirmed.

Brad Roth, of McHenry, Haszard, Roth, Hupp, Burkholder 

& Blomenberg, P.C., L.L.O., for appellant.

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

for appellee.

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

Kelch, and Funke, JJ.

Kelch, J.

INTRODUCTION

Following a jury trial, Jamos M. Jasa appeals his conviction and sentence for aggravated driving under the influence 

(DUI), third offense, a Class IIIA felony under Neb. Rev. 

Stat. §§ 60-6,196 (Reissue 2010) and 60-6,197.03(6) (Cum. 

Supp. 2014). Jasa challenges the order of the district court 

for Lancaster County that denied his motion to suppress the 
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results of a chemical breath test. We conclude that the district 

court did not err in finding that law enforcement (1) had reasonable suspicion to initiate a traffic stop, (2) administered a 

15-minute observation period prior to the chemical breath test 

in accordance with title 177 of the Nebraska Administrative 

Code, and (3) complied with Neb. Rev. Stat. § 60-6,199 

(Reissue 2010) by allowing access to a telephone to arrange 

independent testing. Therefore, we affirm.

BACKGROUND

On February 14, 2015, Jasa was the subject of a traffic stop, 

which led to a DUI investigation and a chemical breath test 

showing an alcohol concentration of .191 grams of alcohol per 

210 liters of Jasa’s breath. The State charged Jasa pursuant to 

§§ 60-6,196 and 60-6,197.03(6) with DUI, third offense, while 

having a breath alcohol concentration of .15 grams of alcohol 

per 210 liters of breath, or more.

Prior to trial, Jasa moved to suppress his chemical breath 

test result on several grounds. In relevant part, he alleged 

(1) that law enforcement officers lacked reasonable suspicion 

or probable cause to stop his vehicle, making any evidence 

obtained as a result of the stop inadmissible; (2) that the chemical breath test was not conducted in compliance with title 177 

of the Nebraska Administrative Code, because law enforcement officers failed to properly and continuously monitor him 

for 15 minutes prior to the breath test; and (3) that Jasa was 

prohibited from obtaining independent testing of his alcohol 

concentration, which rendered his breath test result inadmissible under § 60-6,199.

At the hearing on Jasa’s motion to suppress, the evidence 

established that on February 14, 2015, shortly after midnight, Officers Kenneth Morrow and Jonathan Sears of the 

Lincoln Police Department were on patrol together when they 

received a dispatch about a vehicle that was “all over the 

road” at First and West O Streets in Lincoln, Nebraska. The 

dispatch center received the initial report from an employee 
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Cite as 297 Neb. 822

of Lincoln Fire and Rescue (LFR). The report originated from 

LFR “Engine 3,” which is based at a firehouse near First and 

West O Streets.

Morrow and Sears arrived in the area within a few minutes. 

At approximately Third and West O Streets, they saw a pickup 

that matched the description and the license plate number provided by LFR.

Morrow testified that they observed the pickup weaving 

in its lane and saw both the front and rear driver’s side tires 

completely cross over the dashed lane divider line. The district 

court received into evidence Lincoln Mun. Code § 10.14.110 

(1990), which prohibits a motorist’s vehicle from straddling the 

lane line with its wheels for a distance greater than required to 

safely change lanes.

Morrow testified that after seeing the pickup cross the lane 

line with its driver’s side tires, he activated his cruiser camera, 

which was able to “jump back . . . 10 seconds on the video.” 

A copy of the resulting video was received at the suppression 

hearing. Morrow testified that the video shows the pickup 

weaving within its lane and then crossing the lane line. Due to 

the quality of the video, lighting, and movement, the lane line 

is difficult to discern during portions of the video; however, 

it does appear that the pickup weaved in its lane and could 

have briefly crossed the lane line with both driver’s side tires. 

Morrow acknowledged that the quality of the video was “not 

great,” but stated that from his perspective, he was able to see 

the driver’s side tires cross the lane line. After perceiving this 

traffic violation, the officers initiated a traffic stop and identified the pickup’s driver as Jasa.

Morrow testified that Jasa’s driving behaviors were consistent with someone who is under the influence of alcohol 

and that he administered field sobriety tests and a preliminary 

breath test at the scene of the traffic stop. Jasa was ultimately 

arrested for DUI.

While detained in the police cruiser, Jasa twice requested a 

blood test. Morrow testified that the officers could have taken 
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Jasa to a hospital for a chemical blood test. Instead, the officers 

transported Jasa to the Lancaster County jail for a chemical 

breath test. They arrived at the jail at 1:04 a.m.

While Sears prepared for the breath test, Morrow accompanied Jasa to a different room where Jasa changed into a jail 

uniform. Morrow observed Jasa for 15 minutes prior to the 

chemical breath test, monitoring him for belching, vomiting, 

or anything that would bring alcohol from his stomach to his 

mouth and affect the accuracy of the test. Morrow testified 

that he observed none of these behaviors.

Sears testified that he was aware that the 15-minute observation had taken place but that Morrow did not directly communicate with Sears about his observations. Sears explained that 

sometimes, when two officers conduct a DUI investigation, 

one officer carries out the observation period while the other 

administers the chemical test, but that normally, the subject 

sits beside the testing machine for the 15-minute observation period.

Morrow testified that he explained the chemical breath test 

process to Jasa, and Sears testified that he, Sears, completed 

the steps necessary to administer the test. At some point, 

Morrow filled out “Attachment 16,” a “checklist technique 

. . . approved and prescribed” by title 177 of the Nebraska 

Administrative Code. The checklist requires the following 

tasks: verify the testing instrument’s maintenance, “[o]bserve 

the subject for 15 minutes prior to testing,” record the time 

the observation began, attach a clean mouthpiece, verify that 

a complete breath sample was obtained with no errors, and 

indicate the alcohol content of the breath sample obtained. The 

bottom of the form includes a line above the words “Permit 

Holder.” Morrow checked the box next to each task on the 

form, filled in the necessary information, and identified Sears 

as the permit holder. Morrow testified that normally, the officer who administers the breath test is identified as the permit 

holder. Morrow and Sears both had Class B permits to operate 

the testing instrument.
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Sears administered the chemical breath test at 1:22 a.m. 

Both Morrow and Sears were present. The test indicated that 

Jasa had a breath alcohol concentration of .191 grams of alcohol per 210 liters of breath.

Immediately after the chemical breath test, Morrow read 

Jasa a “physician’s advisement,” which informed Jasa that 

under § 60-6,199, he had a right to undergo independent testing but would have to procure and pay for it himself. Morrow 

further explained to Jasa that Jasa would have to ask someone 

to come to the jail to perform an independent test. Jasa asked 

how he could arrange such testing, and Morrow informed him 

that he would be allowed to use the telephone and would have 

to speak with the jail staff for further details. Additionally, 

Morrow told Jasa that he would have to remain in jail until his 

court date 3 days later.

Jasa was cited for aggravated DUI, third offense, a felony. 

Morrow testified that Jasa had to be lodged in jail because his 

offense was not bondable. Sears explained that the offense was 

not bondable because Jasa was arrested during the weekend 

and a judge could not set bond for several days.

Both Morrow and Sears testified that neither of them did 

anything to inhibit Jasa’s ability to arrange independent testing. Morrow stated that inmates at the Lancaster County jail 

are allowed to make telephone calls and to have visitors. Both 

officers testified that they could not recall anyone ever coming 

to the jail to administer an independent blood test, but Morrow 

pointed out that he did not “stick with the people down at the 

jail” and that, in his role as a police officer, he would never 

see an arrestee receiving a visitor and did not know how the 

process worked.

Jasa testified that Morrow and Sears did not offer to transport him to the hospital for a blood test or to have someone 

come to the jail for a blood test, nor did they provide any 

information that he could use to obtain a blood test. Jasa confirmed that he was told he could arrange blood testing on his 

own, but said he had no idea whom to call or how to arrange 
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such testing at 2 a.m., especially since he is not from Lincoln. 

However, Jasa acknowledged that he used to live in Lincoln 

and had access to a telephone while he was in jail on the night 

of his arrest.

Over the 31⁄2 days that Jasa spent in jail for the present 

offense, he made 45 telephone calls. The evidence showed 

that at 1:56 a.m. on the night of his arrest, he first called his 

current attorney, but was unsuccessful in reaching him. Jasa 

testified that he also called his brother and a friend several 

times to attempt to arrange for bond so that he could obtain an 

independent test upon his release and because, he testified, he 

did not realize he was nonbondable until several hours after his 

incarceration. Jasa acknowledged that, while in jail, he never 

attempted to contact a physician, a hospital, or anyone else to 

obtain a blood test.

Jasa testified that on the morning of the suppression hearing, he called several places in Lincoln to inquire whether they 

perform independent blood tests at the jail: the main desk, the 

laboratory, and the emergency room at a Lincoln hospital; the 

laboratory and the emergency room at another Lincoln hospital; and two other testing facilities, as well as the Lancaster 

County Detention Center’s medical department. Jasa testified 

that one of the hospitals had referred him to the two other testing facilities. Jasa stated that he made his best effort to find 

a facility that would draw blood at the jail and that he spoke 

to about 15 people, but he did not obtain the names of the 

employees who fielded his calls. Jasa testified that each facility informed him that it does not come to the jail to perform 

independent blood tests.

The district court denied Jasa’s motion to suppress. First, 

while the district court made the factual finding that Morrow 

observed Jasa’s pickup weaving within his lane and crossing 

over the lane line with the driver’s side tires, the district court 

ultimately relied on the observation of weaving alone, along 

with LFR’s report, in determining that the traffic stop was 

justified by reasonable suspicion of criminal activity. Second, 
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the district court concluded that it was not improper under 

title 177 for the officers to “work[] together” to observe Jasa 

during the 15-minute period prior to the breath test. Further, 

the district court reasoned that even if the officers did not 

strictly comply with the 15-minute observation requirement, 

the 15-minute observation period is a “‘technique’” rather than 

a “‘method’” under title 177, and that thus, any deficiency 

in executing it would affect credibility, but not admissibility. Finally, the district court concluded that suppression of 

the breath test was not warranted under § 60-6,199 because, 

although the officers did not assist Jasa in obtaining independent testing, law enforcement personnel did not intentionally 

impede his ability to do so.

After overruling Jasa’s motion to suppress, the district court 

conducted a jury trial. The district court received evidence 

of the chemical breath test result over Jasa’s timely objections and overruled his renewed motion to suppress. The jury 

found Jasa guilty of DUI with an alcohol concentration of .15 

or more.

The district court held an enhancement hearing and determined the current conviction to be Jasa’s third DUI offense. 

The district court sentenced Jasa to 36 months’ probation with 

various terms and conditions and 60 days in jail with credit for 

time served. Further, the district court revoked Jasa’s operator’s license for 5 years, with the possibility of obtaining an 

ignition interlock device after 45 days.

This appeal followed.

ASSIGNMENTS OF ERROR

Jasa assigns that the district court erred in (1) finding 

reasonable suspicion to initiate the stop, (2) finding that the 

15-minute observation period prior to the breath test had been 

properly executed pursuant to title 177, (3) finding no violation of § 60-6,199, and (4) not suppressing the breath test and 

allowing it to be offered into evidence.
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STANDARD OF REVIEW

[1] 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 protections is a question of 

law that an appellate court reviews independently of the trial 

court’s determination. State v. McCumber, 295 Neb. 941, 893 

N.W.2d 411 (2017).

[2] The meaning and interpretation of statutes and regulations are questions of law which an appellate court resolves 

independently of the lower court’s conclusion. State v. 

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

ANALYSIS

Legal Basis for Traffic Stop

[3-5] Jasa asserts that the officers did not have a legal basis 

to stop his vehicle. He contends that LFR’s tip and the officers’ 

independent observations were insufficient to create reasonable suspicion. The Fourth Amendment guarantees the right to 

be free of unreasonable search and seizure. State v. Bol, 288 

Neb. 144, 846 N.W.2d 241 (2014). This guarantee requires that 

an arrest be based on probable cause and limits investigatory 

stops to those made upon an articulable suspicion of criminal 

activity. Id. A traffic stop requires only that the stopping officer 

have specific and articulable facts sufficient to give rise to a 

reasonable suspicion that a person has committed or is committing a crime. Id. In this context, if an officer has probable 

cause to stop a traffic violator, the stop is objectively reasonable. Id.

[6] A police officer has probable cause to stop a defendant’s 

vehicle, independent of an anonymous tip, when the officer 

observes a traffic violation. See State v. Sanders, 289 Neb. 

335, 855 N.W.2d 350 (2014). A traffic violation, no matter how 

minor, creates probable cause to stop the driver of a vehicle. 
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Id. In reviewing a challenge to the legality of an automobile 

stop, the question is not whether the officer issued a citation 

for a traffic violation or whether the State ultimately proved 

the violation; instead, a stop of a vehicle is objectively reasonable when the police officer has probable cause to believe that 

a traffic violation has occurred. Id.

Here, Jasa claims that the traffic stop was not justified 

because he did not commit a traffic violation under § 10.14.110 

of the Lincoln Municipal Code. That section of the code prohibits driving with “one front and rear wheel . . . on one side 

of [the lane] line and the other front and rear wheel . . . on the 

opposite side of the [lane] line for a distance more than is necessary to change from one traffic lane to the other with safety.” 

Specifically, Jasa claims that his vehicle “did not straddle the 

[lane] line with both tires at the same time as required under 

the code.” Brief for appellant at 18.

The State contends that Jasa committed a traffic violation which provided probable cause for the traffic stop. To 

support its position, the State first notes the district court’s 

factual finding that Morrow observed Jasa’s vehicle “weaving within his lane and at one point crossing over the lane 

line with the driver’s side tires.” Despite this factual finding 

by the district court, in its holding, the court relied upon the 

call from dispatch and Jasa’s vehicle weaving within the lane 

as reasonable suspicion for the traffic stop. The State requests 

that we accept these factual findings, because on appeal, we 

review a trial court’s factual findings for a motion to suppress 

based on a claimed violation of the Fourth Amendment for 

clear error. See State v. McCumber, 295 Neb. 941, 893 N.W.2d 

411 (2017). Although the video is not entirely clear, Morrow 

testified that from his perspective, he observed both driver’s 

side tires cross the lane line. We find it was not clearly erroneous for the district court to accept Morrow’s testimony on 

this issue.

[7] Next, based upon these facts, the State argues that we 

should find probable cause for the traffic stop based upon a 
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violation of the law. And we do independently review whether 

the facts violate the Fourth Amendment protections as a question of law. See State v. McCumber, supra. With the district 

court’s having found that Morrow observed both of Jasa’s 

driver’s side wheels cross the lane line, it was objectively 

reasonable to conclude that a traffic violation had occurred. 

Where the record adequately demonstrates that the decision 

of a trial court is correct—although such correctness is based 

on a ground or reason different from that assigned by the trial 

court—an appellate court will affirm. State v. Huff, 279 Neb. 

68, 776 N.W.2d 498 (2009). Therefore, we find no error by the 

district court in concluding that reasonable suspicion justified 

the traffic stop.

Administration of Breath Test

Pursuant to Title 177

[8] Jasa next disputes the admissibility of the chemical 

breath test results. The four foundational elements which the 

State must establish as foundation for the admissibility of a 

breath test in a DUI 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. 

State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000). Jasa’s 

contentions focus on the third foundational element.

Title 177 is the governing Department of Health and Human 

Services regulation in this case. Title 177 authorizes Class B 

permit holders to perform a chemical test to analyze a subject’s 

breath for alcohol content using an approved method. See 177 

Neb. Admin. Code, ch. 1, § 001.07B (2014). Title 177 further 

sets forth the “Operating Rules for Class B Permit,” and provides, “To determine the alcohol content in breath, a Class B 

permit holder shall . . . [u]se the appropriate checklist . . . .” 

177 Neb. Admin. Code, ch. 1, §§ 007.02 and 007.02B (2014). 
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Under title 177, the testing machine used here is among the 

“[a]pproved evidentiary breath testing methods and instruments 

. . .” for which the “[c]hecklist technique . . .” in attachment 

16 is approved and required. 177 Neb. Admin. Code, ch. 1, 

§§ 008.01, 008.01A, and 008.01C (2014). As described above, 

attachment 16 consists of a checklist of tasks including, among 

other things, “[o]bserve the subject for 15 minutes prior to 

testing.” At the bottom of the checklist is a line with the words 

“Permit Holder” underneath.

Here, Morrow observed Jasa for 15 minutes before Sears, 

the named permit holder, administered the chemical breath 

test. Jasa claims that the breath test was not properly conducted 

under the methods stated by the Department of Health and 

Human Services in title 177, because Sears failed to observe 

Jasa for 15 minutes prior to administering the test and instead 

relied upon Morrow’s 15-minute observation of Jasa. Further, 

Jasa contends that Sears could not rely on the knowledge of 

another officer to satisfy the observation period required by 

attachment 16 of title 177, because he and Morrow did not discuss the 15-minute observation period conducted by Morrow 

before Sears administered the breath test.

Jasa points to DeBoer v. Nebraska Dept. of Motor Vehicles, 

16 Neb. App. 760, 761, 751 N.W.2d 651, 654 (2008), where 

the Nebraska Court of Appeals referred to the checklist as a 

“form by regulation [that] must be completed by an officer 

when conducting a breath test.” But that descriptive phrase 

occurred only in the background section of that particular 

opinion and was not part of the Court of Appeals’ holding in 

DeBoer. Although it may be typical, and even the best practice, 

for one officer both to administer the breath test and to complete the checklist, title 177 does not require that one officer 

perform both duties.

In this instance, competent evidence at the suppression 

hearing established that each requirement of attachment 16 

had been performed. Morrow, a Class B permit holder, testified that he personally observed Jasa for the entire 15-minute 
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observation period and perceived nothing that would affect the 

accuracy of the test administered by Sears. Morrow further 

verified that he was present for the breath test and completed 

attachment 16, which shows that each foundational requirement had been met; and other than addressing the manner of 

executing the 15-minute observation period, Jasa presented no 

evidence or arguments to challenge the form’s validity. Based 

on this evidence, we conclude the district court did not err in 

admitting the chemical breath test result, despite Jasa’s assertions that it lacked sufficient foundation under title 177.

We digress to note the district court’s finding that even if 

the officers had not strictly complied with title 177, the breath 

test results were admissible, because the 15-minute observation period was a technique rather than a method, and, as such, 

any failure to strictly adhere to it affected only the weight and 

credibility of the evidence, not its admissibility. In reaching 

this conclusion, the district court cited State v. Miller, 213 

Neb. 274, 281, 328 N.W.2d 769, 773 (1983), where we stated, 

“[f]ailure to comply with a technique is not a failure to prove a 

foundational element, but affects weight and credibility only.” 

Jasa, however, argues that the analysis in Miller does not apply 

in this instance, because Miller analyzed a prior rule of the 

then Department of Health’s rules and regulations, rather than 

title 177. Further, Jasa contends that under title 177, “methods” and “techniques” are intertwined and thus, no distinction 

between the two should apply here.

In reaching our conclusion in Miller, we distinguished 

between method and technique, as those terms were expressly 

defined in the prior rule. But before arriving at that distinction, we stated that in order to admit the results of a chemical test, the statutory foundation must be met. We determined 

that such foundation was satisfied, and not until later in the 

opinion did we undertake the discussion of “method” and 

“technique” to address a requested jury instruction that invited 

the jury to assess the admissibility of the evidence. Therefore, 

the key question is whether the State proved that the express 
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requirements of the Department of Health and Human Services 

have been fulfilled, and here, we have answered that question 

in the affirmative. Having thus concluded, we need not delve 

into any distinction between methods and techniques.

Opportunity for Independent Chemical

Test/Admissibility Under § 60-6,199

Next, Jasa claims that the district court erred when it found 

that the officers had not violated his statutory right to an independent blood test pursuant to § 60-6,199. Section 60-6,199 

provides:

The peace officer who requires a chemical blood, 

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

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

breath, or urine. The person tested shall be permitted to 

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

condition and perform or have performed whatever laboratory tests he or she deems appropriate in addition to and 

following the test or tests administered at the direction of 

the officer. If the officer refuses to permit such additional 

test to be taken, then the original test or tests shall not be 

competent as evidence. Upon the request of the person 

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

of the officer shall be made available to him or her.

In State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995), 

we applied the language of § 60-6,199, then codified as Neb. 

Rev. Stat. § 39-669.09 (Cum. Supp. 1992). We found that an 

officer had no statutory duty to transport an in-custody defendant to the hospital for an independent blood test. In Dake, we 

also endorsed the view that while “the police cannot hamper 

a motorist’s efforts to obtain independent testing, they are 

under no duty to assist in obtaining such testing beyond allowing telephone calls to secure the test.” 247 Neb. at 584, 529 

N.W.2d at 49.

Here, Jasa requested the opportunity to undergo an independent blood test, and Morrow informed him that jail staff 
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would allow him access to the telephone to make the necessary 

arrangements. Jasa’s access to the telephone began at approximately 2 a.m., shortly after officers administered the chemical 

breath test, but, despite making 45 telephone calls, he did not 

try to contact a hospital or physician. Instead, he attempted, 

unsuccessfully, to make arrangements for bond.

On the morning of the suppression hearing, Jasa called hospitals and other entities to inquire about a blood test. Jasa testified that he learned that no entity he contacted comes to the 

jail to conduct independent blood tests. Notably, Jasa did not 

identify any of the individuals who fielded his calls, nor, as the 

State points out, does this evidence categorically establish that 

Jasa could not have been tested at the jail. It merely shows that 

Jasa’s “best efforts” on the morning of the suppression hearing 

were fruitless.

In the instant case, Jasa was provided telephone access, but, 

whether through misunderstanding or calculated choice, he did 

not use it to arrange for timely independent testing. Even if 

confusion about bond influenced Jasa’s failure to arrange for 

a timely independent blood test, any such misfortune did not 

arise due to the fault of law enforcement, who advised him that 

he would remain in jail until his court date and that he would 

have to arrange for someone to administer a blood test at the 

jail. See People v. Kirkland, 157 Misc. 2d 38, 595 N.Y.S.2d 

905 (1993) (if driver cannot obtain test, through no fault of 

police, it is generally considered driver’s misfortune). Instead, 

the officers in this case fulfilled the requirements of § 60-6,199 

as applied in Dake: They did not hamper Jasa’s ability to 

obtain an independent test, and they assisted him by allowing 

him to make telephone calls to secure it.

Despite Jasa’s failure to attempt to arrange for a timely 

independent test, he argues that our holding in State v. Dake,

supra, is distinguishable from his situation because he later 

attempted to contact hospitals and other entities about an 

independent blood test and none of them performed such tests 

at the jail. He also claims Dake is distinguishable because he 
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could not bond out for 3 days, whereas the defendant in Dake

bonded out within a few hours. Under the circumstances in this 

case, Jasa believes that the intent of § 60-6,199 is defeated if 

the officers are not required to do more than provide access to 

a telephone.

Jasa relies on cases from other jurisdictions. He cites 

Hedges, 143 Idaho 884, 154 P.3d 1074 (Idaho App. 2007). But 

in Hedges, an Idaho court held that “the police . . . have a duty 

not to interfere with or affirmatively deny a defendant access 

to a telephone once a request has been made to make telephonic arrangements for an independent [blood alcohol content 

(BAC)] test,” but “no duty to administer a second BAC test or 

otherwise participate in arranging an independent BAC test on 

behalf of the defendant” and no duty to “transport a defendant 

to a medical facility to obtain an independent BAC test.” 143 

Idaho at 888, 154 P.3d at 1078.

Jasa also points to Unruh v. State, 669 So. 2d 242, 243-44 

(Fla. 1996), where the Supreme Court of Florida found:

[L]aw enforcement must render reasonable assistance 

in helping a DUI arrestee obtain an independent blood 

test upon request. In some cases, minimal aid such as 

providing access to a telephone and directory will be 

sufficient; in others, more active assistance such as 

transporting the arrestee to a blood testing facility will 

be necessary.

However, unexplained by Jasa, is what would constitute reasonable assistance if we adopted the holding in Unruh v. 

State, supra. For example, does the officer need to assist an 

extremely intoxicated person who cannot even conduct a telephone call, does the officer order medical personnel to conduct 

an independent test if they refuse, and who is liable for the 

costs or if an injury occurs? Adopting any standard beyond 

allowing a defendant to make his or her own arrangements 

would add requirements to § 60-6,199 which are not present 

and would lead to confusion for law enforcement and medical 

personnel and inconsistencies in applying the law. See State 
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v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014) (it is not 

within appellate court’s province to read meaning into statute 

that is not there).

[9,10] In this instance, even if we ignored Jasa’s failure to 

timely attempt to arrange for an independent test, it would 

not obviate the fact that the principle of State v. Dake, 247 

Neb. 579, 529 N.W.2d 46 (1995), comports with § 60-6,199. 

Statutory language is to be given its plain and ordinary meaning. State v. Arizola, 295 Neb. 477, 890 N.W.2d 770 (2017). 

And we will not look beyond a statute to determine the legislative intent when the words are plain, direct, or unambiguous. 

State v. Wood, 296 Neb. 738, 895 N.W.2d 701 (2017). Clearly, 

§ 60-6,199 allows any “person tested . . . to have a physician 

. . . evaluate his or her condition and perform or have performed whatever laboratory tests he or she deems appropriate.” But the officer must “refuse[] to permit”—that is, deny 

authorization or consent for—such additional test to trigger 

the suppression of any officer-directed test. Since our holding 

in Dake over two decades ago, our Legislature has not revisited the language in § 60-6,199. The principle that “the police 

cannot hamper a motorist’s efforts to obtain independent testing” and “are under no duty to assist in obtaining such testing 

beyond allowing telephone calls to secure the test” is still a 

reasonable statement of the law. State v. Dake, 247 Neb. at 

584, 529 N.W.2d at 49. Accordingly, the district court did not 

err in finding no violation of the statutory rights afforded to 

Jasa by § 60-6,199.

[11] Jasa further claims a violation of his due process rights 

because he was denied the opportunity to obtain exculpatory 

evidence through an independent blood test. However, he did 

not raise this issue before the district court, and in appellate 

proceedings, the examination by the appellate court is confined to questions which have been determined by the trial 

court. State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006). 

Therefore, we will not consider this issue on appeal.
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Sufficiency of Evidence

Jasa argues that if we conclude that the district court erred 

in denying his motion to suppress, the evidence at trial was 

insufficient to support his conviction for the crime charged. 

However, having found that the district court did not err in 

denying the motion to suppress, we need not consider this 

assignment of error. State v. Bol, 288 Neb. 144, 846 N.W.2d 

241 (2014) (appellate court is not obligated to engage in analysis that is not necessary to adjudicate case and controversy 

before it).

CONCLUSION

For the reasons set forth above, we affirm.

Affirmed.