State v. Parrott

Full title: STATE OF NEBRASKA, APPELLEE, v. BENJAMIN D. PARROTT, APPELLANT

Court: Supreme Court of Nebraska

Date published: Jul 9, 1971

188 N.W.2d 694 (Neb. 1971)

188 N.W.2d 694

Opinion

No. 37855.

Filed July 9, 1971.

Statutes: Intoxicating Liquors: Automobiles: Administrative Law. Tests authorized by statute to be used in determining the alcoholic content present in the body fluid of a person must be performed according to methods approved by the Department of Health.

Appeal from the district court for Douglas County: RUDOLPH TESAR, Judge. Affirmed.

James T. Gleason of Collins Collins, for appellant.

Clarence A. H. Meyer, Attorney General, and Melvin K. Kammerlohr, for appellee.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

NEWTON, J.

The defendant was convicted of driving a motor vehicle while under the influence of intoxicating liquor. Judgment was entered on the verdict and defendant appeals. The question presented is whether or not there was sufficient foundation to sustain the introduction of evidence pertaining to a "breathalyzer" test. We affirm the judgment of the district court.

Tests authorized by statute to be used in determining the alcoholic content present in the body fluid of a person must be performed according to methods approved by the Department of Health. See State v. Fox, 177 Neb. 238, 128 N.W.2d 576. A police of officer testified in detail regarding the testing, preparing, clearing, and use of the machine which performs the breathalyzer test. He also stated that he had a certificate to operate the machine from the Department of Health, had been instructed in its use by Dr. Bernstein of Creighton University, and was experienced in using it. He was unable to say whether or not he had followed methods approved by the Department of Health, but stated he did follow instructions given by Dr. Bernstein.

Although the issue is a close one, as we view it, the record is sufficient. The witness did testify that he had followed the training and instruction received from Dr. Bernstein and he was authorized to operate the machine by the Department of Health. In addition, Dr. Bernstein testified that in instructing police officers in the use of the machine, he used guidelines set up by the Department of Health. In brief, the officer was instructed in accordance with the methods recommended by the Department of Health; he followed the instructions received, and in so doing, necessarily followed the Department of Health regulations.

The judgment of the district court is affirmed.

AFFIRMED.