State v. Benedict
State v. Benedict
Opinion of the Court
Defendant, Robert D. Benedict, was charged under section 39-669.07, R. R. S. 1943, with operating or being in the actual physical control of a motor vehicle while under the influence of alcoholic liquor or of any drug or with ten-hundredths of 1 percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath, or urine. Defendant was tried to a jury and convicted, following which a hearing was had with reference to the number of prior convictions of defendant for drunk driving, at which hearing it was determined that he had had two prior convictions and that the current offense was his third conviction. The defendant was then sentenced to serve 2 years in the Nebraska Penal and Correctional Complex. He has appealed from that conviction and sentence to this court. We affirm.
Defendant’s sole assignment of error is that the jury erred in its finding that defendant was in actual physical control and in operation of his vehicle when arrested for the offense. The facts as revealed and sustained by the record are that on February 27, 1978, at approximately 7:30 p.m., two witnesses observed a blue Ford automobile traveling north on Military Avenue and weaving back and forth across the center line. The driver of the automobile failed to negotiate a curve, and struck a pickup truck parked in a private lot. The accident was also observed by three girls on a porch across the street. The evidence is uncontradicted that the driver of the automobile was the only person in the car at the time, and the defendant was subsequently identified by all the witnesses as the driver of the automobile.
In his brief on appeal, appellant argues that although witnesses had identified him as the driver of the vehicle that struck the other vehicle on the occasion in question, none of the State’s witnesses testified that defendant was under the influence of intoxicating liquor at the time he was observed in the accident. He states: “Plere, assuming defendant was identified positively by all witnesses, certainly does not tend to prove the existence of the key phrase in the State Statute which specifically states one can only be convicted of the offense of drunken driving if he is under the influence of intoxicating liquor when observed by the charging or complaining parties involved. Sec. 39-669.07, R. R. S. Neb. 1943, Reissue
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.