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eBook details

• Title: State Nebraska v. Jacinto Orosco
• Author : Supreme Court of Nebraska
• Release Date : January 07, 1977
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

Defendant was found guilty by a jury of operating or being in the actual physical control of a motor vehicle while under the influence of alcoholic liquor in violation of the provisions of section 39-669.07, R. R. S. 1943, and of refusing to submit to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his body fluid in violation of the provisions of section 39-669.08 (4), R. R. S. 1943. The conviction under section 39-669.07, R. R. S. 1943, was in the information charged to be a third such offense and following the jury verdict the court found that it was a third offense. The defendant was fined $100, his operator's license was revoked, and he was sentenced to consecutive terms of 60 days confinement in the county jail for violation of section 39-669.08, R. R. S. 1943, and 1 to 3 years imprisonment in the Nebraska Penal and Correctional Complex for violation of section 39-669.07, R. R. S. 1943. On this appeal he argues four assignments of error: (1) The evidence is insufficient to support a conviction of operating or being in the actual physical control of a vehicle while under the influence of intoxicating liquor. (2) The evidence is insufficient to sustain the conviction for refusal to submit to the chemical test of his body fluids because the defendant was never offered the opportunity to take a preliminary breath test and the offering of such a test, if equipment is available, is a condition precedent to a valid arrest, and since there was no valid arrest there can be no conviction for refusal. (3) The evidence to support the conviction for a third offense of driving while intoxicated is insufficient because (a) the two prior convictions were constitutionally invalid for the reason that the pleas of guilty and nolo contendere entered therein are not shown to have been voluntarily and intelligently made, (b) a conviction founded upon a plea of nolo contendere cannot be used to support an enhanced penalty, and (c) a conviction for the offense of driving while intoxicated, third offense, cannot be supported unless there is shown to have been an earlier charge and conviction specifically for a second offense under the provisions of section 39-669.07 (2), R. R. S. 1943. (4) The District Court abused its discretion in not placing the defendant on probation and in imposing consecutive sentences.

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