DENNIS C. SMITH, APPELLEE, V. STATE OF NEBRASKA, DEPARTMENT OF MOTOR VEHICLES, APPELLANT.
No. S-93-938
Supreme Court of Nebraska
July 7, 1995
535 N.W.2d 694
Viewing the evidence in a light most favorable to the Poppletons, we find that no genuine issue of material fact exists. The facts of this case have been previously ruled upon in Union Pacific I and II, and the appellees are entitled to a judgment as a matter of lаw. Therefore, the trial court was correct in granting summary judgment in favor of the appellees and quieting title to the property in Lyman-Richey and Union Pacific as their interests may appear.
Because our discussion of the Poppletons’ sixth and first assignments of error are dispositive of the appeal, we need not address the Poppletons’ remaining assignments of error. The judgment of the district court is affirmed.
LANPHIER, J., not participating.
AFFIRMED.
David Kimble for appellee.
WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.
LANPHIER, J.
On May 16, 1993, the appellee, Dennis C. Smith, was arrested by an officer of the Seward Police Department for driving while under the influence of alcohol. Prior to administering the chemical test which confirmed the concentration of alcohol in Smith‘s breath, the arresting officer read Smith an administrative license revocation advisement (the advisory form), which is rеquired by state statute. The advisory form attempted to detail the consequences of refusing to submit to the breath test and the consequences of submitting to the test and failing it. Smith consented to the breath test, and the test confirmed an alcohol concentration in excess of the legal limit. Following an administrative hearing, Smith‘s motor vehicle operator‘s license was revoked for a period of 90 days by the director of the Department of Motor Vehicles. The sole issue in
BACKGROUND
As of January 1, 1994, the Nebraska Rules of the Road, chapter 39 of the Nebraska Revised Statutes, were renumbered. They are now codified at
Pursuant to
Since Smith failed the breath test, his motor vehicle operator‘s license was impounded and he was issued a temporary licensе. He was informed that unless he filed a petition with the Department of Motor Vehicles (Department) for review, his license would be automatically revoked 30 days from the date of his arrest.
On May 25, 1993, Smith requested an administrative hearing before the Department to contest the revocation. On May 26, the Department notified Smith that his administrative hearing would be conducted on June 3. At the hearing, the primary issue was whether the advisоry form adequately informed Smith of the consequences of taking and failing a chemical test. By an order dated June 9, the director of the Department revoked Smith‘s operating license and privilege to operate a motor vehicle for 90 days.
ASSIGNMENTS OF ERROR
The Department asserts that the district court erred in finding that the arresting officer failed to give Smith adequate notice of the consequences of failing or refusing a chemical test of his blood, breath, or urine and erred by reversing the Department‘s order of revocation and ordering thе reinstatement of Smith‘s license.
STANDARD OF REVIEW
The judgment rendered or final order made by the district court in an Administrative Procedure Act appeal may be reversed, vacated, or modified by the Supreme Court or the Court of Appeals for errors appearing on the record. Wagoner v. Central Platte Nat. Resources Dist., 247 Neb. 233, 526 N.W.2d 422 (1995); Sunrise Country Manor v. Neb. Dept. of Soc. Servs., 246 Neb. 726, 523 N.W.2d 499 (1994); Abbott v. Department of Motor Vehicles, 246 Neb. 685, 522 N.W.2d 421 (1994).
Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an indepеndent, correct conclusion irrespective of the decision made by the court below. Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994).
ANALYSIS
Any person who operates a motor vehicle in Nebraska is deemed to have given his or her consent to submit to a chemical
Prior to 1993, Nebraska law provided for administrative license revocation only when a person refused to submit to a chemical test and when such refusal was not shown to be reasonable.
ADVISORY REQUIRED BY STATUTE
Prior to requiring an arrestee to submit to a chemical test or refuse to submit, the arresting officer shall аdvise the arrestee of the consequences of both choices.
In interpreting the former statute, we stated that the purpose of requiring arresting officers to advise drivers of the consequences of a refusal to take a breath test is to ensure that the driver knows and is in a position to make a rational and voluntary decision as to whether he or she will comply with law. State v. Deets, 234 Neb. 307, 450 N.W.2d 696 (1990). If it can be shown that the licenseе was properly advised, the only understanding required by the licensee is an understanding that
As amended, the statute now requires a warning about the consequences of submission to the test. The Legislature also amended another section of the administrative license revocation provisions.
In ascertaining the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as determined from the language of the statute considered in its plain, ordinary, and popular sense. Anderson v. Nashua Corp., supra; In re Application of City of Lincoln, 243 Neb. 458, 500 N.W.2d 183 (1993). It is our duty to discover, if possible, the Legislature‘s intent from the language of the statute itself. Id.
When the word “shall” appears in a statute, mandatory or ministerial action is presumed.
The sensible reading of
ADEQUACY OF ADVISORY FORM
The portion of the one-page advisory form which informed Smith of the consequences of failing a chemical test reads as follows:
I must further advise you that if you refuse to take the
test or tests as I direct, or if you submit to the test or tests, and the results disclose the presence of drugs or of alcohol in an illegal concentration, I am required to immediately impound yоur license, and your license will be automatically revoked in 30 days unless you file a petition within 10 days of your arrest and request a hearing. The penalty for refusal is the revocation of your license or driving privilege for one year.
If you submit to the test or tests, and the results disclose the presence of drugs or alcohol in an illegal concentration, and your license has not been revoked within the last eight years, thе penalty is the revocation of your license or driving privilege for 90 days. If your license has been revoked within the last eight years, the penalty is revocation of your license or driving privilege for one year.
The advisory form partially complied with
Smith was not informed that the results of a valid chemical test could be competent evidence in any prosecution involving a driving under the influence offense. See
A separate part of the advisory form did inform Smith of the criminal penalties for first, second, third, and fourth or subsequent convictions of driving while intoxicated and refusal to submit to the test. However, as the Department concedes in its reply brief, the advisory form is not perfectly worded. The wording of the form is confusing as to whether those criminal penalties attach to the crime of driving while intoxicated or the crime of refusal to submit to the test or both.
In addition, there are more serious penalties including felonies which could result from a test which disclosed an
As we stated in State v. Deets, 234 Neb. 307, 450 N.W.2d 696 (1990), the purpose of requiring arresting officers to advise drivers of the consequences of a refusal to take a breath test is to ensure that the driver is in a position to make a rational and voluntary decision. If it can be shown that the licensee was properly advised, the only understanding required by the licensee is an understanding that he or she has been asked to take a test in order to revoke the driver‘s license due to his or her refusal to submit to the test. Sеe, id.; State v. Beerbohm, 229 Neb. 439, 427 N.W.2d 75 (1988); Pollard v. Jensen, 222 Neb. 521, 384 N.W.2d 640 (1986); Martinez v. Peterson, 212 Neb. 168, 322 N.W.2d 386 (1982).
When Deets and the other foregoing cited cases were decided, an operator‘s license could only be administratively revoked upon refusal to submit to the chemical test. An arresting officer‘s observations or the defendant‘s poor performance on field sobriety tests is sufficient evidence to sustain a conviction of driving under the influence. Thus, refusal to submit to the chemical test resulted in the consequence of administrative license revocation in addition to any other penalty. See State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991). Informing drivers of this additional consequence met the previous statute‘s directive.
Today, whether a driver refuses to submit to the test or takes the test and fails to pass it, the driver faces administrative license revocation. The Legislature has mandated that drivers shall be advised of the consequences in both situations. For examplе, this now includes the evidentiary consequences and the possibility of felony convictions.
The State argues that the disclosure statute be read in a manner which Justice Holmes referred to in a different setting as affording it “a little play in its joints.” Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S. Ct. 228, 75 L. Ed. 482 (1931).
Although the Department concedes that the advisory form is
The dissent, relying on State v. McGuire, 493 So. 2d 559 (La. 1986), argues that
The dissent asserts that the advisory form administered by the officer in State v. McGuire was adequate. However, the Louisiana form was much more comprehensive than Nebraska‘s form. The Louisiana form advised the driver that the test results would be used against her in court and advised her of her constitutional rights. The Supreme Court of Louisiana noted that the advisory form conformed to a legislative directive which specifically delineated the legal consequences of which a driver must be informed. The statute before us provides no such delineation.
Smith was not properly advised of material and critical consequences of failing a breath test as required by
The Department argues that even if Smith was not properly advised of the consequences of failing the chemical test, the
CONCLUSION
Smith was not fully advised of the consequences of submitting to the breath test and failing it as required by
AFFIRMED.
CONNOLLY, J., dissenting.
In my opinion, the advisory form which the law enforcеment officer read to Smith was adequate under
The majority opinion holds that the advisory form only partially complied with the requirements of
The majority opinion ignores the Legislаture‘s intent behind
The Legislature enacted 1992 Neb. Laws, L.B. 291, to provide
a swift and sure method for administratively revoking a person‘s driver‘s license if he or she either refuses to submit to a test of his or her alcohol concentration under the state implied consent law or if such test of alcohol concentration indicates that he or she is under the influence of alcohol or drugs in violation of [§ 60-6,196].
Statement of Purpose, L.B. 291, Committee on Transportation, 92d Leg., 1st Sess. (Feb. 11, 1991). In passing L.B. 291, the Legislature intended to “provide a deterrent to persons who might be tempted to drink and drive.” Statement of Purpose, supra.
The Louisiana Supreme Court decision in State v. McGuire, 493 So. 2d 559 (La. 1986) is directly on point. The statute in effect at the time of the McGuire decision required a law enforcement officer who requested a driver to submit to a chemical test to “first inform the person of the consequences of a refusal and the consequences if the test is conducted and the results indicate a blood alcohol concentration of .10 percent or above . . . .” Id. at 561. The warning administered by the officer in McGuire contained only the following language with regard to the consequences of submitting to and failing the chemical test: “[T]est results of .10 percent or above will be used against you in court.” . . . “If you submit to the test, and the test results show a blood alcohol level of .10 percent or above, your driver‘s license shall be suspended for a minimum period of three (3) months.” Id. at 562.
The court in McGuire held that the warning administered by the officer constituted satisfactory compliance with the statute requiring the officer to inform the driver of the consequences of failing the test. The McGuire court specifically held that the
I would reach the same decision in the case at bar that the Louisiana Supreme Court reached in McGuire. Of the four deficiencies cited by the majority opinion in the advisory form, three dealt with the use of the chemical tеst results in subsequent criminal prosecutions. Those legal consequences existed prior to the passage of L.B. 291, and the Legislature never saw fit to require a law enforcement officer to inform the driver of those consequences. See State v. Deets, 234 Neb. 307, 450 N.W.2d 696 (1990). The passage of L.B. 291 enabled law enforcement officers to immediately revoke and impound a driver‘s license for submitting to and failing a chemical test. The purpose of L.B. 291 was to combat the drunk driving problem with a swift and efficient administrative procedure, not to require police officers to provide drivers with a litany of their rights and the consequences of their actions. The only information the Legislature intended for law enforcement officers to have to impart to drivers pursuant to
The majority also cited the lack of information regarding a reinstatement fee as one of the consequences about which Smith should have been informed. Pursuant to State v. Deets, 234 Neb. at 308, 450 N.W.2d at 697, the purpose of the statute requiring the advising of consequences is to provide the driver with relevant information ensuring that “the driver knows and is in a position to make a rational and voluntary decision as to whether he will comply with the law.” If a law enforcement officer is required to inform the driver of the potential monetary consequences of failing a chemical test, such as the payment of a reinstatement fee, why not require the arresting officer to inform drivers that they could lose their jobs, that their insurance premiums might be increased, and that they might incur attorney fees if charges are filed?
Clearly, the only relevant consequence of failing a chemical test contemplated by
WRIGHT, J., joins in this dissent.