S-25-0256 State of Nebraska (Appellee) v. Samuel J. Zemke (Appellant)
Appeal from the District Court for Lancaster County, Judge Ryan S. Post
Attorneys: Preston Mostek (Preston Mostek Attorney at Law LLC for Appellant) and Nathan A. Liss (Asst. Attorney General for Appellee)
Criminal: Driving Under the Influence (DUI), 4th offense
Proceedings below: A jury found Appellant guilty of DUI, and the district court enhanced the conviction to a DUI, 4th offense. Appellant was sentenced to two years’ imprisonment, eighteen months of post-release supervision, and a fifteen-year revocation of his driver’s license. On its own motion, the Nebraska Supreme Court ordered this case to be transferred from the docket of the Nebraska Court of Appeals to its docket.
Issues: Appellant assigns the following errors: 1) There was insufficient evidence presented to the jury to sustain a conviction of driving under the influence of a drug, fourth offense; because subsequently, no evidence was ever presented by the State suggesting any specific drug. And ultimately, officers concluded that Appellant was under the influence of a general drug based on pure speculation, paired with the fact that he had an interlock in his car and a prior medical and criminal history of drug use; 2) The trial court erred when it overruled trial counsel’s request for a mistrial after the jury was allowed to hear testimony from Officer Wagner that Appellant had an interlock installed in his truck; and thus, the jury made a common inference that Appellant had at least one prior driving under the influence charge; 3) The trial court erred when it denied trial counsel’s objection and allowed the State to question the DRE officer about medical records she had reviewed, which she formulated her opinion that Appellant was under the influence of a drug, specifically from a prior blood draw; and 4) Trial counsel was ineffective as it persuaded Appellant to try the case, facing a potential prison sentence if convicted, when the State had offered Appellant an opportunity to take a plea bargain and enter a plea to an amended charge of driving under the influence of a drug, second offense, which is only a misdemeanor and county jail time at most.