Opinion No. (1985)

Check Treatment

REQUESTED BY: Kristine R. Cecava Keith County Attorney In which of the following circumstances would it be a violation of the license revocation provision contained in Neb.Rev.Stat. § 39-669.07(1), (2), and (3):

1. If a person, during the period of the revocation, operated a licensed motor vehicle on private property;

2. If a person, during the period of the revocation, operated a licensed motor vehicle on public property other than a public highway;

3. If a person, during the period of the revocation, operated a non-licensed motor vehicle on private property;

4. If a person, during the period of the revocation, operated a non-licensed motor vehicle on a public highway;

5. If a person, during the period of the revocation, operated a non-licensed motor vehicle on public property other than a public highway.

1. One who operates a motor vehicle on private property will not violate the terms of § 39-669.07 as such provision applies solely to the public highways of this state.

2. One who operates a motor vehicle on public property, other than a public highway as defined in Neb.Rev.Stat. § 39-602(32), will not violate the provisions of § 39-669.07, as such provision applies solely to operation of motor vehicles upon the public highways of this state.

3. One who operates a non-licensed motor vehicle on private property will not violate the terms of §39-669.07, as such provision applies solely to operation of motor vehicles upon the public highways of this state.

4. One who operates a non-licensed motor vehicle on a public highway will be in violation of the license provision contained in § 39-669.07 if he or she operates such motor vehicle on the highways of this state solely for purposes of personal transportation.

5. One who operates a non-licensed motor vehicle solely for personal transportation on public property which is open to the use of the public for purposes of vehicular travel, would violate the terms of § 39-669.07.

You have requested an Opinion with regard to the circumstances under which an individual operating a motor vehicle may be violating the license suspension provisions contained in Neb.Rev.Stat. § 39-669.07(1), (2), and (3) (Reissue 1984). Sections 39-669.07(1), (2), and (3) each provides that when an individual is found guilty of driving while intoxicated in violation of such section, "the court shall, as part of the judgment of conviction, order such person not to drive any motor vehicle for any purpose" for a period of time.

First, you have inquired whether an individual would violate § 39-669.07 if he or she, during the period of the license revocation, operates a motor vehicle on private property. Neb.Rev.Stat. § 39-603 (Reissue 1984) provides that "[t]he provisions of sections 39-601 to39-6,122 relating to operation of vehicles refer exclusively to operation of vehicles upon highways except where a different place is specifically referred to in a given section, . . . ."

Neb.Rev.Stat. § 39-602(32) (Reissue 1984) defines "highway" as follows:

Highway shall mean the entire width between the boundary limits of any street, road, avenue, boulevard, or way which is publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel; "Motor vehicle" is defined be Neb.Rev.Stat. § 39-602(53) as "every self-propelled land vehicle, not operated upon rails, except mopeds and self-propelled invalid chairs."

Neb.Rev.Stat. § 39-603 makes the provisions of Neb.Rev.Stat. § 39-601 to 39-6,122 applicable solely to the operation of vehicles upon the highways of this state. Therefore, one would not violate §39-669.07 if he or she operates a motor vehicle on private property.

Second, you have inquired whether a person would violate the license revocation provisions of § 39-669.07 if he or she, during the period of the revocation, operates a motor vehicle on public property other than a public highway. The provisions of § 39-669.07 are limited by § 39-603 to conduct occurring upon the highways of this state. By definition, "highway" is limited to property which is publicly maintained and open to the use of the public for purposes of vehicular travel.

If an individual were to operate a motor vehicle on public property which was open to the use of the public for purposes of vehicular travel, he or she would be violating the revocation provision contained in § 39-669.07. However, if the property on which the individual drove was not publicly maintained and open to the use of the public for purposes of vehicular travel, § 39-669.07 would not be violated.

Third, you have inquired whether a person would be violating the terms of § 39-669.07, if he or she, during the period of the revocation, operates a non-licensed motor vehicle on private property. It is our understanding that by using the phrase "non-licensed motor vehicle" you are referring to motor vehicles for which no operator's license is required by Neb.Rev.Stat. § 60-403 (Reissue 1984), and it is on that basis that we respond to your inquiry. An individual may operate a non-licensed motor vehicle on private property, without violating the terms of §39-669.07, as the provisions of § 39-601 to39-6,122 r the operation of vehicles refer exclusively to operation of vehicles upon public highways.

Fourth, you have inquired whether an individual would be violating the terms of § 39-669.07 if he or she, during the period of the revocation, operates a non-licensed motor vehicle on a public highway. One may operate a nonlicensed motor vehicle on a public highway after his or her license has been suspended pursuant to § 39-669.07 so long as such motor vehicle is not operated on a public highway solely for purposes of personal transportation. Neb.Rev.Stat. § 60-430.04 (Reissue 1984) provides as follows:

No person whose motor vehicle operator's license has been suspended or revoked as a result of a conviction for operating a motor vehicle while under the influence of intoxicating liquor shall operate, solely for personal transportation, on these streets, roads, or highways of this state any motor vehicle driven for which a motor vehicle operator's license is not required.

Fifth, you have inquired whether an individual would be violating the terms of § 39-669.07 if he or she, during the period of the revocation, operates a non-licensed motor vehicle on public property other than a public highway. The crucial questions involved in your inquiry will be whether such motor vehicle is operated on an area open to the use of public for purposes of vehicular travel, and whether such vehicle is operated solely for personal transportation. One who operates a non-licensed motor vehicle solely for personal transportation on public property which is open to the use of the public for purposes of vehicular travel, would violate the terms of § 39-669.07.

Sincerely,

ROBERT M. SPIRE Attorney General

Jill Gradwohl Assistant Attorney General