972 N.W.2d 85
Neb. Ct. App.2022Background
- At about 3:00 a.m. on June 28, 2019, Albarenga, traveling north on a one-way 17th Street, stopped in the west-most lane at 17th & Q facing a steady red left‑turn arrow and then turned left on the red arrow.
- A Lincoln police officer stopped her for violating the left‑turn arrow, observed signs of intoxication, arrested her, and a breath test read 0.142.
- She was charged in county court with DUI and with violating an automatic traffic signal (Lincoln Mun. Code § 10.12.030).
- Albarenga moved to suppress evidence and to quash the municipal red‑arrow charge, arguing the municipal ordinance conflicted with Neb. Rev. Stat. § 60‑6,123 (state Rules of the Road) and was therefore unenforceable.
- The county court overruled both motions and convicted her; the district court affirmed on appeal; Albarenga appealed to the Nebraska Court of Appeals.
Issues
| Issue | Albarenga's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Lincoln Mun. Code § 10.12.030 conflicts with Neb. Rev. Stat. § 60‑6,123(3)(c) (left turn on steady red) | § 60‑6,123’s reference to a “steady red indication” covers both circular and arrow indications and thus permits the left turn described there, making the municipal ban inconsistent and unenforceable | A steady red ARROW is a distinct “traffic control device” prohibiting the turn under § 60‑6,123’s exception; NDOT’s Manual (adopted regulation) treats red arrow as prohibiting the movement, so no conflict exists | No conflict. Court held a red arrow is a traffic control device prohibiting the turn; the NDOT Manual clarifies and controls construction, so the ordinance is consistent with state law |
| Whether the traffic stop should be suppressed because the alleged ordinance/statute conflict made the violation unenforceable and deprived the officer of reasonable suspicion | Because the ordinance was unenforceable due to conflict, the stop lacked lawful basis and suppression was required | No conflict existed, so the officer had reasonable suspicion based on a traffic violation | Motion to suppress properly overruled |
| Whether the municipal charge should be quashed on preemption/conflict grounds | The municipal ordinance is preempted or rendered unenforceable by § 60‑6,123 | No preemption or conflict; municipal regulation of red arrows is consistent with state law and agency regulation | Motion to quash properly overruled |
Key Cases Cited
- State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (statutory interpretation is reviewed de novo)
- City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638 N.W.2d 839 (courts may take judicial notice of general, published agency rules and regulations)
- Melanie M. v. Winterer, 290 Neb. 764, 862 N.W.2d 76 (properly adopted agency regulations have the force and effect of statutory law)
- Davio v. Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786 N.W.2d 655 (specific statutes/regulations control over more general provisions)
- State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (statutes in pari materia must be read together to discern legislative intent)