State v. Dinslage

TERC lacks jurisdiction over DRI’s appeal as a result of the
Board’s failure to comply with the Act. As such, DRI’s 2005
valuations are voided and revert to the valuations placed on the
property at issue in 2004. We therefore reverse TERC’s deci-
sions in this case, vacate the decision of the Board denying
DRI’s protests, and declare as void the actions of the county
assessor increasing the valuations of the subject properties for
the purposes of taxation as of January 1, 2005.
CONCLUSION
Because TERC lacks jurisdiction over these appeals, we
reverse TERC’s decisions, vacate the decisions of the Board,
and void the 2005 valuations of DRI’s properties.
R eveRsed and vacated.
state of nebRaska , appellee , v. apRil dinslage ,
also known as apRil cleaRy, appellant.
789 N.W.2d 29
Filed October 1, 2010. 	No. S-10-252.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. Sentences: Probation and Parole. Whether a condition of probation imposed by
the sentencing court is authorized by statute is a question of law.
3. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence. Such matters are for
the finder of fact.
4. Drunk Driving: Blood, Breath, and Urine Tests: Proof. The State is not
required to prove a temporal nexus between a breath test and the defendant’s
alcohol level at the moment he or she was operating the vehicle.
5. ____: ____: ____. Matters of delay between driving and testing are properly
viewed as going to the weight of the breath test results, rather than to the admis-
sibility of the evidence.
6. Criminal Law: Statutes: Legislature: Intent. Although the rule of lenity
requires a court to resolve ambiguities in a penal code in the defendant’s
favor, the touchstone of the rule of lenity is statutory ambiguity, and where the
STATE v. DINSLAgE 	659
Cite as 280 Neb. 659
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

legislative language is clear, a court may not manufacture ambiguity in order to
defeat that intent.
7. Statutes. A statute is ambiguous when the language used cannot be adequately
understood either from the plain meaning of the statute or when considered in
pari materia with any related statutes.
8. Sentences: Appeal and Error. A sentence imposed within the statutory limits
will not be disturbed on appeal in the absence of an abuse of discretion by the
trial court.
Appeal from the District Court for Lancaster County: RobeRt
R. otte, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Scott
P. Helvie, and Brett B. Pettit, Senior Certified Law Student,
for appellant.
Jon Bruning, Attorney general, george R. Love, and Elizabeth
W. Alderson, Senior Certified Law Student, for appellee.
H eavican, 	c.J., 	wRigHt, 	connolly, 	geRRaRd, 	stepHan,
MccoRMack, and M illeR-leRMan, JJ.
MccoRMack, J.
NATURE OF CASE
April Dinslage, also known as April Cleary, appeals her con-
viction and sentence for driving under the influence (DUI), third
offense, with more than .15 of 1 gram of alcohol per 210 liters
of her breath. The breath test conducted 50 minutes after the
stop demonstrated that Dinslage had a concentration of .20 of 1
gram of alcohol per 210 liters of breath. Nevertheless, Dinslage
argues that the test was insufficient proof of her breath alcohol
concentration at the time she was stopped, because she had
consumed several drinks immediately before driving and those
drinks had not yet metabolized into her system. Dinslage also
argues that the trial court lacked statutory authority to impose
180 days’ confinement as a condition of the sentence of proba-
tion and that her sentence was otherwise excessive.
BACKgROUND
Dinslage testified that on the night of May 21, 2008, she
had gone to a bar to meet a friend at approximately 9:30 p.m.
Within the first hour, she consumed one “Southern Comfort
660 	280 NEBRASKA REPORTS

and Mountain Dew” and one “Jägerbomb.” Dinslage explained
that the Southern Comfort drinks at this bar were especially
large and strong, each containing at least 21⁄2 ounces of alcohol.
Jägerbombs contain a shot of liqueur. Dinslage was not entirely
sure how much she drank in between the time she arrived
and “last call,” but it was at least 11⁄2 more Southern Comfort
drinks. At “last call,” her friend bought her another Southern
Comfort drink and Jägerbomb. She quickly drank those and the
remainder of the Southern Comfort drink she had from earlier,
and left the bar at 12:50 a.m.
At approximately 1 a.m., Officer Brock Wagner observed
Dinslage’s vehicle swerve twice past the right fog line of the
road. Wagner initiated a traffic stop at approximately 1:09 a.m.
Upon approaching the vehicle, Wagner noticed that Dinslage
had slurred speech; bloodshot, watery eyes; and a strong odor
of alcohol on her breath. When Dinslage exited her vehicle,
Wagner observed that Dinslage swayed and stumbled when
she walked.
Dinslage failed several field sobriety tests. During the nine-
step walk-and-turn test, she was unable to maintain the heel-to-
toe position or keep her arms at her sides. She was also unable
to keep her balance during the instructional phase and when
she turned. During the one-leg stand, Dinslage was unable to
maintain her arms at her sides, and she put her foot down pre-
maturely. During the “Romberg balance test,” which consists
of tilting one’s head back and closing one’s eyes while estimat-
ing the passage of 30 seconds, Wagner observed that Dinslage
swayed from left to right and front to back. Dinslage was able
to recite the alphabet, but she demonstrated slurred speech
while doing so. She showed all seven clues of impairment in
the horizontal gaze nystagmus test.
On cross-examination, Wagner admitted that Dinslage was
not “falling down drunk.” No specific calculations were offered
regarding alcohol consumption and weight, but Wagner agreed
that it takes several drinks to get over the legal limit at any
size. The identification technician responsible for maintaining
the Intoxilyzer units confirmed on cross-examination that it
takes approximately 30 to 90 minutes for an alcoholic bever-
age to be absorbed into the bloodstream and recognized by the
STATE v. DINSLAgE 	661
Cite as 280 Neb. 659

Intoxilyzer. The Intoxilyzer test was conducted on Dinslage at
1:59 a.m., showing a concentration of .20 of 1 gram of alcohol
per 210 liters of breath at that time.
The trial court overruled defense counsel’s motion for
directed verdict. Sitting as the trier of fact, the court found
Dinslage guilty of DUI, third offense, with more than .15 of
1 gram of alcohol per 210 liters of her breath. At sentenc-
ing, defense counsel argued that Dinslage was an appropriate
candidate for probation. The presentence investigation report
showed that Dinslage had a small child, born after the arrest,
who had reportedly motivated Dinslage to change. Dinslage
successfully participated in a rehabilitation program for alco-
hol abuse. However, reports evaluated her risk of relapse
and reoffending as “very high.” Besides two previous DUI’s,
Dinslage had a record of multiple misdemeanor offenses,
including negligent driving, disturbing the peace, making false
statements to police officers, and four convictions for driving
with a suspended license.
The trial court explained that it was not entirely convinced
that Dinslage was an appropriate candidate for probation, but,
in deference to the minor child and the probation officer’s
opinion that Dinslage might be a reasonable candidate for
probation, the court was willing to give her the opportunity
to show that she could comply. The trial court sentenced her
to 180 days’ confinement as a condition of the probation. The
court denied defense counsel’s motion to modify the sentenc-
ing order on the ground that the maximum jail time under
Neb. Rev. Stat. § 60-6,197.03(6) (Supp. 2007) was 60 days.
The trial court explained that, as required by § 60-6,197.03(6),
his order “include[d]” 60 days’ confinement. And the court
found no conflict between § 60-6,197.03(6) and Neb. Rev.
Stat. § 29-2262 (Reissue 2008), which authorizes trial courts to
impose jail time as a condition of probation for a period “not
to exceed” 180 days for a felony, which this was.
ASSIgNMENTS OF ERROR
Dinslage asserts that the trial court erred in (1) finding her
guilty of having a breath alcohol level of .15 or more, as no
rational trier of fact could have made that finding based upon
662 	280 NEBRASKA REPORTS

the offered evidence; (2) sentencing Dinslage to 180 days’
confinement when such sentence is not permitted by law; and
(3) sentencing Dinslage to 180 days’ confinement, as such sen-
tence is excessive under the circumstances.
STANDARD OF REVIEW
[1] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for
an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.1
[2] Whether a condition of probation imposed by the sen-
tencing court is authorized by statute is a question of law.2
ANALYSIS
sufficiency of evidence to sHow .15
[3] Dinslage concedes she was driving while intoxicated,
in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2004).
She argues that the evidence was insufficient to prove that she
was driving with a concentration of .15 of 1 gram or more
of alcohol per 210 liters of her breath, which, in conjunction
with her prior DUI’s, makes her offense punishable under
§ 60-6,197.03(6). When reviewing a criminal conviction for
sufficiency of the evidence to sustain the conviction, the rele-
vant question for an appellate court is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.3 In reviewing a criminal
conviction, an appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the
evidence. Such matters are for the finder of fact.4
[4,5] Dinslage argues that because the significant amount
of alcohol she consumed at “last call” could not have entered
1 State v. Prescott, ante p. 96, 784 N.W.2d 873 (2010).
2 State v. Lobato, 259 Neb. 579, 611 N.W.2d 101 (2000).
3 State v. Prescott, supra note 1.
4 Id.
STATE v. DINSLAgE 	663
Cite as 280 Neb. 659

her blood or breath when she was stopped approximately 35
minutes later, the Intoxilyzer test results obtained approxi-
mately 50 minutes after the stop did not establish that she was
operating a vehicle with a breath alcohol concentration of .15
or greater. Neb. Rev. Stat. § 60-6,201(1) (Cum. Supp. 2008)
states that any chemical test conducted according to methods
approved by the Department of Health and Human Services
and with a valid permit “shall be competent evidence” in any
prosecution for operating a motor vehicle “when the concen-
tration of alcohol in the blood or breath is in excess of allow-
able levels.” In State v. Kubik,5 we explained that the State is
not required to prove a temporal nexus between the test and
the defendant’s alcohol level at the moment he or she was
operating the vehicle. It would be an impossible burden on
the State to conduct such an extrapolation when its accuracy
depends on the defendant’s willingness to testify and his or
her honesty in reporting all relevant factors, including the time
and quantity of consumption.6 Thus, matters of delay between
driving and testing are properly viewed as going to the weight
of the breath test results, rather than to the admissibility of the
evidence.7 And a valid breath test given within a reasonable
time after the accused was stopped is probative of a violation.8
We speculated in Kubik that there might in some cases be a
“delay . . . so substantial as to render the test results nonproba-
tive of the accused’s impairment or breath alcohol level while
driving.”9 But we held that a breath test given “less than 1
hour” after the defendant was stopped did not entail an unrea-
sonable delay.10
The 50-minute delay in this case was not unreasonable.
Nor are we persuaded that the consumption of large quantities
5 See State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990). See, also, State
v. Tejral, 240 Neb. 329, 482 N.W.2d 6 (1992); State v. Towler, 240 Neb.
103, 481 N.W.2d 151 (1992).
6 See State v. Kubik, supra note 5.
7 Id.
8 Id.
9 Id. at 634, 456 N.W.2d at 501.
10 Id.
664 	280 NEBRASKA REPORTS

of 	alcohol 	immediately 	before 	driving 	somehow 	rendered
Dinslage’s breath test result nonprobative. The evidence dem-
onstrated that well before “last call,” Dinslage had been drink-
ing, and that she was impaired enough to fail almost every
field sobriety test given. Viewing the evidence in the light more
favorable to the prosecution, there was sufficient evidence for
a rational trier of fact to conclude that Dinslage was operat-
ing her vehicle with a breath alcohol concentration of .15
or greater.11
M axiMuM teRM of iMpRisonMent
as condition of pRobation
We next consider Dinslage’s argument that the jail term
imposed by the trial court was outside its statutory authority.
Section 60-6,197.03 describes 10 different levels of DUI, which
are classified by the statute as ranging from a Class W misde-
meanor to a Class II felony. Where the court orders probation,
§ 60-6,197.03 specifies the mandatory conditions of such pro-
bation, including jail time for the greater offenses. Thus, if the
court orders probation for a person who has no prior DUI’s and
who was most recently stopped with an alcohol level of less
than .15, then the court must order a 60-day license revocation
and the order of probation “shall also include” a $400 fine.12
But, if the court gives probation to a defendant who has had
four or more prior convictions and who had an alcohol level of
.15 or greater, then the court must revoke the offender’s license
for 15 years and the order of probation “shall also include”
a $1,000 fine and confinement in the city or county jail for
180 days.13
Dinslage had two prior DUI convictions and a breath alcohol
level of at least .15, so it was mandated by subsection (6) that
her license be revoked “for a period of at least five years but
not more than fifteen years,” and her order of probation “shall
also include, as conditions, the payment of a one-thousand-
dollar fine and confinement in the city or county jail for sixty
11 See State v. Prescott, supra note 1.
12 § 60-6,197.03(1).
13 § 60-6,197.03(9).
STATE v. DINSLAgE 	665
Cite as 280 Neb. 659

days.”14 Dinslage argues that this 60-day period of confine-
ment is both the minimum and the maximum term allowed by
law for a defendant granted probation under this subsection.
We disagree.
In State v. Vasquez,15 we considered a similar argument
under the previous version of § 60-6,197.03, Neb. Rev. Stat.
§ 60-6,196 (Cum. Supp. 2002). We concluded that § 60-6,196
did not set forth maximum jail times for probation and should
be read in conjunction with § 29-2262. Section 29-2262 gen-
erally sets forth the conditions of probation which may be
imposed by the trial judge. Section 29-2262(2)(b) states that
the court may require the offender “[t]o be confined peri-
odically in the county jail . . . but not to exceed (i) for misde-
meanors, the lesser of ninety days or the maximum jail term
provided by law for the offense and (ii) for felonies, one hun-
dred eighty days.” In Vasquez, we concluded that the jail times
described in § 60-6,196 were an additional minimal require-
ment and that the maximum was set forth in § 29-2262(2)(b).
We noted that the legislative history to § 60-6,196 also sup-
ported this conclusion.
At the time Vasquez was decided, the law was distinct from
its current form insofar as it set forth only four levels of DUI,
ranging from a Class W misdemeanor to a Class IV felony, and
the punishments were less severe. However, there is no relevant
difference in the operative language governing the question of
whether a stated incarceration period means to set forth a maxi-
mum as well as a minimum. The offense considered in Vasquez
was classified as a misdemeanor, and § 60-6,196 mandated that
any order of probation “shall . . . include, as conditions, the
payment of a six-hundred-dollar fine and either confinement in
the . . . county jail for ten days or the imposition of not less
than four hundred eighty hours of community service.”16 The
trial court had given probation and chosen confinement rather
than community service, ordering 90 days’ confinement. The
14 § 60-6,197.03(6).
15 State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
16 Neb. Rev. Stat. § 60-6,196(2)(c) (Cum. Supp. 2002) (emphasis supplied).
666 	280 NEBRASKA REPORTS

trial court subsequently modified the order of confinement
to 10 days, convinced that the 10-day period referred to
in § 60-6,197.03(3) (Reissue 2004) was both the minimum
and maximum. We held that the 10-day period was only the
minimum and that the first order of 90 days’ confinement was
within the court’s statutory authority.
Dinslage argues that Vasquez does not control our decision
here because the Legislature has demonstrated in § 60-6,197.03
(Supp. 2007) its ability to clearly specify a range of penalties
when that is intended—and “shall include” must be interpreted
in this context. We observe that such legislative ability was also
demonstrated in § 60-6,196, when the Legislature provided that
community service shall be “not less than” a specified number
of hours17 or, in the case of a level-four offense, that the sen-
tence shall be “at least ten days” of imprisonment.18 Nor do
we find it apposite that the legislative history to the amended
statute does not specifically address whether it intended only a
minimum period of confinement. The legislative history cited
in Vasquez merely bolstered a conclusion already reached
based upon a sensible construction viewed in pari materia with
all related statutes. Furthermore, the legislative history cited in
Vasquez continues to be part of the history of § 60-6,197.03,
and has not since been contradicted.
[6,7] Although the rule of lenity requires a court to resolve
ambiguities in a penal code in the defendant’s favor, the touch-
stone of the rule of lenity is statutory ambiguity, and where
the legislative language is clear, a court may not manufacture
ambiguity in order to defeat that intent.19 A statute is ambigu-
ous when the language used cannot be adequately understood
either from the plain meaning of the statute or when considered
in pari materia with any related statutes.20 The mandate that an
order of probation “shall include” 60 days’ confinement21 does
17 §§ 60-6,196(c) and 60-6,196(d) (Reissue 2004).
18 § 60-6,196(d).
19 State v. Fuller, 278 Neb. 585, 772 N.W.2d 868 (2009).
20 State v. Lebeau, ante p. 238, 784 N.W.2d 921 (2010).
21 § 60-6,197.03(6).
STATE v. DINSLAgE 	667
Cite as 280 Neb. 659

not conflict with the provision that a trial court may require the
offender to be confined for a period not to exceed 180 days.22
Read in pari materia, it is clear that the minimum jail term for
a period granted probation for an offense punishable under
§ 60-6,197.03(6) is 60 days and that the maximum is 180 days.
There is no indication that the Legislature intended to make
terms of probation imposed upon DUI offenders more lenient
than would otherwise be allowed by law. We find no merit to
Dinslage’s argument that the trial court exceeded its statutory
authority in ordering her to serve 180 days’ confinement as a
condition of her probation.
excessive sentence
[8] Finally, we address Dinslage’s argument that in light
of her recent rehabilitation, the sentence imposed was exces-
sive. The steadfast rule in this state is that a sentence imposed
within the statutory limits will not be disturbed on appeal
in the absence of an abuse of discretion by the trial court.23
Where a sentence imposed within the statutory limits is alleged
on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in consider-
ing and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.24
When imposing a sentence, a sentencing judge should consider
the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense, and
(8) the violence involved in the commission of the crime.25
But the appropriateness of a sentence is necessarily a subjec-
tive judgment that includes the sentencing judge’s observation
of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life.26
22 § 29-2262(2)(b).
23 State v. Tejral, supra note 5.
24 State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
25 State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
26 State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
668 	280 NEBRASKA REPORTS

Because Dinslage committed a Class IIIA felony, the trial
court could have sentenced her to up to 5 years’ imprison-
ment.27 But, despite a substantial criminal record, the court
elected to sentence Dinslage to probation. The court did not
abuse its discretion in imposing the maximum term of incar-
ceration as a condition of Dinslage’s probation.
CONCLUSION
For the foregoing reasons, we affirm.
affiRMed.
27 See Neb. Rev. Stat. § 28-105 (Reissue 2008).
STATE v. DINSLAgE 	669
Cite as 280 Neb. 659