STATE v. ROLF, 219 Neb. 917 (1985)

367 N.W.2d 715

STATE OF NEBRASKA, APPELLEE, v. DENNIS M. ROLF, APPELLANT.

No. 84-795.Supreme Court of Nebraska.
Filed May 10, 1985.

Constitutional Law: Due Process: Blood, Breath, and Urine Tests: Trial. The due process clause of the fourteenth amendment does not require that law enforcement agencies preserve breath samples in order to introduce breath analysis tests at trial.

Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed.

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Vincent P. Sutera of Sutera Sutera, for appellant.

A. Eugene Crump, Deputy Attorney General, and Jill Gradwohl, for appellee.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

WHITE, J.

The issue presented to the court in this appeal is whether the due process rights of a person charged with operation of a motor vehicle while intoxicated are violated when the breath sample of the defendant is not preserved for examination by the defendant and presentation at trial.

While this matter was pending, this court ruled on that issue in State v. Vernon, 218 Neb. 539, 541-42, 356 N.W.2d 887, 889-90 (1984), where we said:

With respect to the defendant’s contention that the State is obligated to preserve a breath sample so that an independent test can be made, the U.S. Supreme Court in a recent decision held that due process does not require the State to preserve such a sample. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). In the Trombetta case the Court stated at 104 S.Ct. 2535: “We conclude, therefore, that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce breath-analysis tests at trial.” This assignment of error is without merit.

The judgment of the district court is affirmed.

AFFIRMED.

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