State v. Ellwanger

Citation: Not availableDocket: A-17-1318

Court: Nebraska Court of Appeals; November 5, 2018; Nebraska; State Appellate Court

Original Court Document: View Document

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Jonathan W. Ellwanger appealed his conviction for second offense driving under the influence (DUI) to the Nebraska Court of Appeals, which affirmed the district court's judgment. Ellwanger contested the denial of his motion to suppress evidence obtained during his traffic stop and argued the jury should have been instructed to consider the voluntariness of his statements to law enforcement.

The case originated from an incident in June 2016, where Nebraska State Patrol Trooper Brandon Buhlke observed Ellwanger's truck accelerating through a stop sign at excessive speed and driving on the highway shoulder. Upon stopping the vehicle, Buhlke detected an odor of alcohol and noted Ellwanger's delayed and slurred speech, along with bloodshot eyes. Ellwanger admitted to drinking "plenty" and later rated his intoxication as a "nine" on a scale of one to ten. He expressed discomfort driving home and struggled with field sobriety test instructions, eventually asking to be taken to jail. After a preliminary breath test showing a BAC of .206, Ellwanger was arrested and charged with second offense DUI.

Ellwanger's motion to suppress claimed the traffic stop lacked probable cause, thus violating the Fourth Amendment. The appellate court upheld the lower court's decision, affirming the conviction without addressing the specifics of the jury instruction issue.

In October 2016, a suppression hearing took place where Buhlke testified regarding the traffic stop. The State presented a portion of the traffic stop video, admitted as exhibit 3. The court denied Ellwanger's motion to suppress, referencing State v. Royer, which supports law enforcement's authority to stop a vehicle for erratic behavior, such as excessive acceleration and tire squealing. The court noted that field sobriety tests can be justified by reasonable suspicion derived from observable facts that suggest a driver may be under the influence.

The Nebraska State Trooper had reasonable suspicion based on Ellwanger's bloodshot eyes, the strong odor of alcohol, and his admission of intoxication. The case then moved to a one-day jury trial in January 2017, where Ellwanger maintained a continuing objection to the suppression ruling. Buhlke reiterated his prior testimony, excluding the results of Ellwanger's preliminary breath test (PBT), which is generally inadmissible as evidence of impairment. An edited version of the traffic stop video was entered as exhibit 4.

After the State concluded its case, Ellwanger's motion for a directed verdict was denied, and he did not present a defense. During jury instructions, the defense sought an instruction on the voluntariness of statements, which the State opposed, arguing it was irrelevant and could confuse jurors. The court denied the request due to the absence of a written instruction.

The jury deliberated for under an hour before convicting Ellwanger of DUI. At the enhancement hearing, the court identified Ellwanger’s prior offense and sentenced him to 12 months’ probation, a $500 fine, an 18-month license revocation, and 10 days in jail (with 1 day credited). Ellwanger appealed, claiming errors in denying his motion to suppress and the voluntariness instruction. The district court upheld the county court's decisions, affirming the trooper's authority to stop Ellwanger based on observed traffic violations and rejecting the voluntariness instruction request. Ellwanger has since appealed to a higher court, represented by the same counsel.

In an appeal from a county court in a criminal case, the district court reviews the record to identify errors or abuses of discretion, focusing on whether the trial court's decision conforms to the law, is supported by competent evidence, and is not arbitrary or capricious. When examining a motion to suppress regarding a Fourth Amendment violation, the appellate court employs a two-part standard of review: it assesses historical facts for clear error and independently evaluates whether those facts constitute a Fourth Amendment violation. The correctness of jury instructions is also reviewed independently.

Ellwanger argues that the district court incorrectly upheld the county court's denial of his motion to suppress, claiming the traffic stop lacked probable cause. A vehicle stop is deemed objectively reasonable if there is probable cause for any traffic violation. Ellwanger disputes the county court's reliance on State v. Royer, asserting that the court should not have cited rapid acceleration and tire squealing as probable cause since the issue of probable cause was not raised in Royer's appeal. However, the county court found sufficient grounds for the stop based on Ellwanger's excessive acceleration, tire squealing, and erratic driving, including crossing onto the roadway shoulder, which constitutes a traffic violation under Nebraska law. The officer's testimony confirmed these observations, establishing probable cause for the stop despite the video evidence being unclear. Consequently, the district court concluded that the officer's actions were justified, affirming that Ellwanger's challenge to the motion to suppress was without merit.

Ellwanger argued that the district court wrongly upheld the county court's denial of his request for a jury instruction on the voluntariness of his statements to law enforcement. He sought the inclusion of the NJI2nd Crim. 6.0 instruction, which requires the jury to find beyond a reasonable doubt that a statement was made by the defendant, understood by the defendant, and made freely and voluntarily. To establish reversible error for not providing a requested jury instruction, the appellant must demonstrate that the instruction is legally correct, warranted by the evidence, and that the omission caused prejudice. While a trial judge must instruct the jury on relevant law, they are not required to instruct on matters unsupported by evidence. Ellwanger contended that his case hinged on his law enforcement statements, citing specific examples. However, he did not introduce evidence to suggest that his statements were not made freely and voluntarily, leading to the conclusion that the county court was not obligated to provide the requested instruction. Consequently, the district court appropriately affirmed the county court's decision, and Ellwanger's conviction and sentence were upheld.