Opinion No. (1978)

Check Treatment

REQUESTED BY: Patrick B. Hays, Keith County Attorney, Ogallala, Nebraska 69153. May an owner of a vehicle be charged under section37-1111, 1977 Supp., when he is not present at the time the officer observes his vehicle without a permit in a permit area, or must the officer cite the person actually operating the vehicle?

An officer must cite the operator of a vehicle who violates section 37-1111, 1977 Supp., and it is not permissible to cite the owner by citing the vehicle itself.

Section 37-1111, 1977 Supp., reads as follows:

"It shall be unlawful for any motor vehicle to enter a permit area unless such motor vehicle has permanently affixed thereto a valid permit, except as provided by sections 37-1101 to 37-1114. Any operator of a motor vehicle which enters a permit area without a valid permit, unless in direct and continuous travel to the commission office at such area for the purpose of procuring such permit or as otherwise excepted under section 37-1103, shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not less than fifteen dollars."

While the first sentence of section 37-1111, 1977 Supp., makes it unlawful for a motor vehicle to enter a permit area without a permit, the actual penalty imposed is contained within the second sentence, which provides that the operator of the motor vehicle which enters a permit area without a permit shall upon conviction be guilty of a misdemeanor. We agree with your observation that it is not feasible to cite a motor vehicle where the penalty imposed is upon the operator and where such penalty is a misdemeanor. In support of this belief we point out that section 37-1111, 1977 Supp., does not fall within the purview of the Nebraska Rules of the Road as contained in Article 6, Chapter 39, of the Nebraska statutes, and it is therefore not subject to the same procedures governing general traffic violations. Furthermore, sections 39-411, et seq., R.R.S. 1943, which provide for citations in lieu of arrest, clearly provides that any citation in lieu of arrest must be served upon an individual.

After consideration of the above circumstances, it is our opinion that it is not permissible under section37-1111, 1977 Supp., to cite the vehicle itself, but that the operator of the vehicle must be personally cited for the offense. Furthermore, we find no authority for towing or disabling such a vehicle. Finally, we recognize that such an interpretation may place a burden upon the particular law enforcement officer who observes an unoccupied vehicle which does not have a valid park entry permit affixed thereto, but we believe that an appropriate remedy can only be accomplished through the legislative process.