Opinion
No. A-10-1162.
11-01-2011
STATE OF NEBRASKA, APPELLEE, v. GRACINIANO GONZALEZ-MALDONADO, APPELLANT.
Adam R. Tripp, of Tripp Law Office, for appellant. Jon Binning, Attorney General, and Kimberly A. Klein for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Dodge County: JOHN E. SAMSON, Judge. Affirmed.
Adam R. Tripp, of Tripp Law Office, for appellant.
Jon Binning, Attorney General, and Kimberly A. Klein for appellee.
INBODY, Chief Judge, and SIEVERS and PIRTLE, Judges.
INBODY, Chief Judge.
INTRODUCTION
Graciniano Gonzalez-Maldonado appeals his convictions for fourth-offense driving under the influence (DUI), driving during a 15-year license revocation, and giving false information. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
STATEMENT OF FACTS
On March 21, 2010, at approximately 1:15 a.m., Fremont police officer Andrew Dixson stopped a car after noticing that there was no rear license plate on the car and he was unable to see an in-transit tag in the window. Dixson contacted the driver, who stated that he did not have his drivers' license on his person, but identified himself as "Graciniano G. Maldo," with a date of birth of December 1, 1980. The driver did provide an insurance card and sales documents for the car. Dixson was unable to confirm a driving record for someone with the name which he had been provided. When Dixson recontacted the driver, stating that he could find no record of a driver's license, the driver said he had a Missouri driver's license and corrected his date of birth to another date in December 1980. Even with this information, Dixson was unable to confirm a driver's license record for an individual with the aforementioned name and date of birth.
Because Dixson had noticed that the driver's eyes were bloodshot and watery, Dixson had detected an odor consistent with an alcoholic beverage coming from inside the car, and the driver admitted having two beers earlier that evening, Dixson asked the driver to perform some field sobriety tests and, then, to submit to a preliminary breath test, which indicated a "BAC above .08." The driver was arrested for DUI and transported to the Dodge County jail for a breath test which result was .109.
The following day, Dixson reviewed paperwork that indicated that the driver was Gonzalez-Maldonado. The paperwork showed Gonzalez-Maldonado's photograph and driver's abstract and reflected that his driver's license was suspended.
Gonzalez-Maldonado was charged with fourth-offense DUI, driving during a 15-year license revocation, and giving false information. He moved to suppress the evidence derived from the stop, asserting that no probable cause existed to stop his vehicle. A suppression hearing was held on June 29, 2010, after which the district court denied the motion to suppress, making the following factual findings:
The specific facts that the Court finds are that the police officer was on routine patrol on March 21st, 2010, in a marked cruiser and in uniform. He observed [Gonzalez-Maldonado's] vehicle driving at a slow rate of speed, which is not a violation of the law, but that's what brought his attention to the car. He followed the car inside Fremont and then outside of Fremont and then back into Fremont and during that observation he again observed that [Gonzalez-Maldonado's] car was driving slowly. He observed that the car was weaving and drifting in and out of the lane, and part of that certainly is reflected by the video, Exhibit 2.
The officer also observed that there was not a license plate on the back of [Gonzalez-Maldonado's] vehicle. The . . . vehicle had tinted glass, which made it difficult to see whatever the piece of paper was in the back. I presume it was an in-transit sticker, but that was not readily visible.
. . . [T]he Court accepts the officer's testimony that he did observe the car weaving and drifting in and out of the lane and that the license plate was not visible and -- the in-transit tag was not visible when the officer pulled [Gonzalez-Maldonado's] car over, therefore, the Court finds that there was reasonable articulable suspicion for the officer to stop [Gonzalez-Maldonado's] vehicle and that the stop was not unlawful at that time.
In a hearing held on August 23, 2010, the court addressed a motion to withdraw filed by Gonzalez-Maldonado's counsel, made at Gonzalez-Maldonado's request. The district court permitted Gonzalez-Maldonado to proceed pro se, but directed counsel to remain as standby counsel. The court informed Gonzalez-Maldonado that he could have his attorney take over the case again at any time.
On September 9, 2010, a hearing was held at the court's request to clarify several requests from Gonzalez-Maldonado. The court and Gonzalez-Maldonado discussed the issue of Gonzalez-Maldonado proceeding pro se and his attorney's role as standby counsel. At that time, Gonzalez-Maldonado indicated that he was going to have his attorney officially represent him in the case. The court then scheduled the jury trial for September 14 and asked if counsel would be ready to proceed that day; at that point, counsel indicated to the court that he had received authorization to file a waiver of jury trial and requested that the matter be set for a bench trial. A lengthy colloquy occurred between the court and Gonzalez-Maldonado, with Gonzalez-Maldonado waiving his right to a jury trial and the district court finding that said waiver was made freely, voluntarily, knowingly, and intelligently. A bench trial was held on September 16, at which counsel officially represented Gonzalez-Maldonado. Evidence was adduced as previously set forth regarding the stop and the arrest of Gonzalez-Maldonado.
Dodge County corrections officer Adam Plank testified that he has been in charge of maintaining the DataMaster breath testing device at the Dodge County jail since 2006 and that he holds the requisite permit to perform maintenance on the DataMaster and to administer breath tests. Exhibit 9 consists of two pages, both of which are a "Notice of Person Responsible for Maintenance and Calibration Verification of Testing Devices [U]sed for Direct Breath Analysis of Alcohol Content." The first notice is dated May 9, 2006, and lists Plank as the person responsible for maintenance and calibration of the DataMaster at the Dodge County jail. The second page is the same sort of form; is dated September 14, 2010; and lists Plank as the responsible person, but states that this "memorandum services to provide documentation of your notification to us on 9-10-2010; further that this DataMaster CDM was activated on 2/1/2010." Plank confirmed in his testimony that the new DataMaster machine, which was used to perform Gonzalez-Maldonado's breath test, was placed into service in February 2010 and that he had been maintaining that machine since that time. Plank performed the initial calibration check on February 1, 2010, and the device passed the test within the tolerance limits established. Plank testified that in his opinion, based on the testing and calibration, the DataMaster machine was in proper working order when the breath test was administered to Gonzalez-Maldonado on March 21, 2010.
Justin Libra, a corrections officer with the Dodge County jail, testified that he obtained a Class B permit in November 2009, which remained in effect on March 21, 2010. Libra testified that he properly administered the breath test to Gonzalez-Maldonado on March 21 and that the test result was .109.
The court found Gonzalez-Maldonado guilty of all three charged offenses and scheduled the enhancement hearing for count I and sentencing on all counts for November 1, 2011. The State offered exhibits 19, 20, and 21, which are certified copies of Gonzalez-Maldonado's prior DUI convictions, in support of his enhancement. Gonzalez-Maldonado objected on the basis of an improper use of an interpreter, and he argued that therefore, the prior convictions should not be used for enhancement purposes. This objection was overruled, and the district court found that the instant DUI conviction was properly enhanced to a fourth offense. The court then proceeded to sentence Gonzalez-Maldonado to 1 to 3 years' imprisonment, a $1,000 fine, and a 15-year license suspension on count I; 1 to 2 years' imprisonment and a 15-year license revocation on count II; and 6 months' imprisonment on count III. The sentences were all ordered to run concurrently with each other, and Gonzalez-Maldonado was credited with 220 days served.
ASSIGNMENTS OF ERROR
Gonzalez-Maldonado contends that the district court erred in denying his motion to suppress, in failing to allow him to proceed pro se without standby counsel, in allowing the waiver of his right to a jury trial without a motion or record, in allowing the results of his breath test into evidence, and in enhancing his DUI conviction to a fourth offense.
ANALYSIS
Denial of Motion to Suppress.
Gonzalez-Maldonado claims that the district court erred in overruling his motion to suppress. He claims that there was no probable cause to stop his vehicle and that all evidence derived as a result of the stop should have been ruled inadmissible.
A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011). In this case, the vehicle that Gonzalez-Maldonado was driving was not displaying a rear license plate, nor could Dixson observe in-transit tags on the vehicle due to the time of day (1:15 a.m.) and due to the dark tinting of the vehicle's windows. See, Neb. Rev. Stat. § 60-376 (Reissue 2010) (operation of vehicle without registration; in-transit sticker; records required; and proof of ownership); Neb. Rev. Stat. § 60-399 (Reissue 2010) (display of plates; requirements); Neb. Rev. Stat. § 60-3,100 (Cum. Supp. 2008) (license plates; issuance).
When an officer observes a vehicle without license plates or in-transit tags, a particularized and objective basis exists to justify a reasonable, articulable suspicion that the driver may be criminally avoiding the motor vehicle registration statutes. State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996).
The facts in this case are similar to those in State v. Reiter, 3 Neb. App. 153, 524 N.W.2d 575 (1994), wherein this court concluded that where an officer saw neither license plates nor in-transit tags prior to the stop, the officer reasonably concluded he was witnessing the unlawful activity of improper display of plates or in-transit tags. Likewise, in the instant case, the officer did not observe a rear license plate or an in-transit sign on Gonzalez-Maldonado's vehicle justifying a reasonable, articulable suspicion that he was witnessing a violation of Nebraska criminal law requiring the proper display of license plates or in-transit tags. Thus, there was probable cause for the stop of Gonzalez-Maldonado's vehicle, the district court properly denied his motion to suppress, and his assignment of error is without merit.
Failure to Allow Gonzalez-Maldonado to Proceed Pro Se at Trial.
Gonzalez-Maldonado contends that the district court erred in disallowing his request to represent himself at trial without assistance and requiring him to have standby counsel. The district court permitted Gonzalez-Maldonado to proceed pro se, but directed counsel to remain as standby counsel. The court informed Gonzalez-Maldonado that he could have his attorney take over the case again at any time. From the bill of exceptions, it appears this is exactly what happened, as the trial court noted counsel appearing on behalf of Gonzalez-Maldonado at the beginning of the trial and that Gonzalez-Maldonado's counsel was acting fully as his representative during the trial, not in a standby capacity. Thus, Gonzalez-Maldonado has waived this assignment of error by electing to have his attorney represent him at trial and not proceed pro se.
Waiver of Jury Trial.
Gonzalez-Maldonado contends that the district court erred in allowing him to waive his right to a jury trial without motion or a proper record.
The right to trial by jury is personal and may be waived by a criminal defendant. State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995); State v. Zemunski, 230 Neb. 613, 433 N.W.2d 170 (1988). In order to waive the right to trial by jury, a defendant must be advised of the right to jury trial, must personally waive that right, and must do so either in writing or in open court for the record. State v. Russell, supra; State v. High, 225 Neb. 690, 407 N.W.2d 776 (1987).
The supplemental bill of exceptions requested by the State reflects the hearing at which Gonzalez-Maldonado very clearly personally, freely, voluntarily, knowingly, and intelligently waived his right to a jury trial after an extensive colloquy with the district judge. This assignment of error is without merit.
Results of Breath Test.
Gonzalez-Maldonado claims that the district court erred in allowing the results of his breath test into evidence where officers did not comply with regulations regarding maintenance of the breathalyzer.
Gonzalez-Maldonado argues that the Department of Health and Human Services (DHHS) was not notified of the maintenance officer and serial number of the DataMaster device used to test his breath for alcohol content until about 7 months after it was actually placed in service, precluding the admission of his breath test results into evidence. Title 177 of the Nebraska Administrative Code requires the maintenance officer to "[n]otify the Department of the name of the maintenance officer(s) for each site and the serial number of each unit for which the maintenance officer is responsible." 177 Neb. Admin. Code, ch. 1, § 009.01C (2009). However, there is no date requirement contained therein.
Gonzalez-Maldonado also argues that there is some difference in the signatures on the exhibits. He objects to the fact that the signature of the administrator of the credentialing division of DHHS in exhibit 9 is smaller on one document and larger on another document contained in the exhibit. He claims this difference indicates that the documents might not have been signed by the same person and that proper procedure was not followed. A review of exhibit 9 reveals that the style of the signatures is similar, even though the size of the signature differs. The difference in the size of the signatures goes to the weight of the evidence, rather than to its admissibility.
The four foundational elements which the State must establish as foundation for the admissibility of breath test results 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 DHHS, and (4) that all other statutes were satisfied. State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000).
The evidence adduced by the State did establish that the DataMaster device was working properly on March 21, 2010, when the breath test on Gonzalez-Maldonado was conducted; that the person who administered the test, Libra, was qualified and held a valid permit; that the test was properly conducted as required by DHHS' rules and regulations; and that all other statutes were satisfied. Thus, the breath test results were properly admitted into evidence and this assignment of error is without merit.
Enhancement of DUI Conviction.
Gonzalez-Maldonado claims that the district court improperly enhanced his DUI conviction to a fourth offense by considering convictions that were inadmissible for the purposes of sentence enhancement because, during the previous proceedings, his interpreter was not given an oath as required by statute prior to engaging in their duties.
Collateral attacks on previous DUI convictions are impermissible unless the challenge is grounded upon the court's lack of jurisdiction over the parties or subject matter, or entail a violation of the defendant's due process rights to appeal or rights to counsel in violation of the defendant's Sixth Amendment rights. State v. Anderson, 279 Neb. 631, 781 N.W.2d 55 (2010). Gonzalez-Maldonado's objection to the use of his prior convictions for the purposes of enhancement is not based upon a lack of jurisdiction, a violation of his due process rights, or his right to counsel, and thus, his objection constitutes an impermissible collateral attack on those convictions. Further, a review of the exhibits reveals that Gonzalez-Maldonado either was represented by counsel or knowingly, intelligently, and voluntarily waived counsel in each of the prior convictions. Thus, the district court properly considered the prior offenses for the purposes of enhancement and this assignment of error is without merit.
CONCLUSION
Having considered and rejected Gonzalez-Maldonado's assignments of error, we affirm his convictions and sentences.
AFFIRMED.