*1 Dеpartment W. Ben Snyder, appellee, agency an administrative appellant. Nebraska, State of August Filed 2007. No. S-06-352. General, and Vierk for Jon Edward G. Bruning, Attorney appellant.
S. Nelson for Gregory appellee.
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, JJ. Miller-Lerman, McCormaсk, J. Stephan,
The sole issue in this case is whether a sworn list- (20 OVER)/D.U.I.” the reasons for an arrest as ing “Speeding is sufficient to confer of Motor (DMV) (ALR) Vehicles in an license revocation administrative with the district court for proceeding. agree Douglas County and, therefore, that it is not affirm the of that court which reversed administrative revocation.
FACTS 6, 2005, a.m., at On October 1:47 Omaha police a motor vehicle driven W. Ben after observ- Snyder stopped the vehicle The officer arrested ultimately Snyder ing speeding. under the influence. After transporting him the officer read headquarters, Snyder postarrest police chemical submitted chemical then test advisement. test of via an The chemical his breath machinе. Intoxilyzer test showed a blood alcohol concentration over the limit. legal 12, 2005,
On the director of the DMV received a October *2 the The sworn arresting officer. report completed by stated, other that report among Snyder was arrested things, pur- 60-6,197 (Reissue suant to 2004) Neb. Rev. Stat. and listed the (20 OVER)/D.U.I.” reasons for his arrest as “Speeding director also received a an administrative petition hearing from on Snyder, hearing whether license should Snyder’s on revoked was held November Snyder’s objected counsel to the that jurisdiction, director’s did arguing not reflect properly arrest. The offi- hearing cer took the under advisement. The objection arresting officer testified at the hearing. found subsequently that the information in the sworn was sufficient to con- fer on the DMV jurisdiction and recommended that Snyder’s license be revoked for the of 90 The direc- statutory period days. tor adopted this recommendation on November 8. court, to the district timely appealed which reversed director’s decision dismissed the revocation
license. The court district reasoned and “D.U.I.” speeding thus, were not sufficient reasons for the arrest and that did confer to jurisdiction DMV revoke The DMV Snyder’s license. filed this moved timely appeal. docket case to our to our authority to pursuant statutory regulate the caseloads of the courts of state.1 this appellate OF
ASSIGNMENT ERROR restated, The DMV assigns, district court erred in reasons listed in determining for arrest the sworn report were not sufficient to the DMV to revoke give Snyder’s license. 24-1106(3) (Reissue 1995). See Neb. Rev. Stat. OF REVIEW
STANDARD a district court in or final order rendered A Act Procedure Administrative review judicial pursuant reversed, vacated, court for or modified by appellate bemay When аn order of reviewing on the record. errors appearing Act for errors under the Administrative Procedure district court record, decision is whether the on inquiry appearing evidence, law, and is conforms to the is supported competent nor unreasonable.2 neither arbitrary, capricious,
ANALYSIS of the issue in this requires Resolution presented appeal statutes and our decision examination of the relevant Nebraska it unlawful in Hahn v. Nebraska law makes Neth3 thе actual con- or be in physical any person operate trol of motor vehicle: any influence of alcoholic or of
(a) While under the liquor any drug;
(b) eight- such has a concentration of When of alcohol by weight hundredths of one or more grаm per blood; hundred milliliters of his or her or one *3 a of (c) eight- When such has concentration person of alcohol hundredths of one or more gram by weight per hundred ten liters of his or her breath.4 two is deemed who a motor vehicle in Nebraska Any person operates for the consent to submit to chemical tests purpose to have given blood, breath, the concentration of alcohol in the of determining arrested for any or urine.5 A officer may require person police alco- an offense while under the influence of driving committing chemical “when the officer has reasonable hol to submit to a test or was in the to believe that such was driving grounds person . . . while under actual control of motor vehicle physical 3000, Comm., 133, Inc. v. Pub. Serv. 273 Neb. 728 N.W.2d Chase Nebraska Servs., (2007); Dept. Health & Human 272 Neb. Wilson v. Nebraska of (2006). N.W.2d 32 60-6,196(1) (Reissue 2004). Neb. Rev. Stat. § 5 60-6,197(1). §
influence of Any alcoholic arrested liquor.”6 person of under of directed the influence alcоhol be may officer to submit to a concentra- chemical test to determine the tion of alcohol in that If chemical test shows person’s body.7 limit, concentration above the driver is to legal subject the ALR found Neb. Stat. to in Rev. 60-498.01 procedures §§ (Reissue 2004).8 60-498.04 60-498.01(3)
Section that when a arrested person under 60-6,197(2) circumstances described in to a submits test chemical of blood or breath that discloses illegal pres- ence of alcohol and test results are availаble the arresting officer while the arrested is still in the arrest- custody, person ing
shall within ten forward to the a sworn days director (a) that the stating was arrested as described in person 60-6,197 (2) subsection and section the reasons for such arrest, (b) that the to submit person requested test, test, (c) submitted to a required person submitted, of test to he which or she type that such test revealed alcohol a concentration presence 60-6,196 in section .9 specified [over .08] If a motorist arrested under these circumstances a hear- requests the issues are ing, under limited to the following:
(A) Did the officer have cause to peace believe probable the person was or in the actual operating con- рhysical 60-6,196 trol of a motor vehicle violation of section . . and .
(B) Was the in the or actual operating physical control of a motor vehicle while an alcohol concen- having 60-6,196.10 (1) tration in violation of subsection seсtion Resolution of first the motorist, issue depends officer’s reasons while resolution second depends 6 60-6,197(2).
7 60-6,197(3).
8 Id.
9 60-498.01(3). §
10 60-498.01(6) (c)(ii).
172 after Both the arrest. the results of tests conducted upon issues facts. require showing the ALR report triggers officer’s sworn basis revocаtion.11 facie for by establishing prima process made, facie unless showing When such a case prima and aby pre for a establishes arrested person petitions do not for revocation of the evidence that grounds pоnderance exist, license revoked automatically operator’s the substan after the arrest.12Because of days of 30 expiration in an ALR tial role of evidentiary proceeding, “must, minimum,” in the information it at a contain specified the director 60-498.01(3) in order to confer jurisdiction upon case, a license.13In this of the DMV to revoke administratively for which reasons must we focus on the reasons 60-498.01(3)(a). in stated the sworn report pursuant includes 2/4 blank lines on which sworn repоrt Here, arrest. the arresting officer is the reasons for the to state the initial officer’s notation speeding explains not, alone, constitute a reason traffic but does stop standing made arrest. reflects that the officer record Although and a field tests certain observations conducted sobriety arrest, the breath test before the observations preliminary Instead, the officer test results are not stated the sworn report. “D.U.I.,” under abbreviation only wrote common While this us what the officer suspected influence. tells arrest, it no when he made the factual reasons upon correctly which his was based. As the district court noted, conclusion, it is a a reason. an oner- form is not
Completion
1-page
Motor
task.14
v. Department
ous
Betterman
Recently
Vehicles,15
that a
on the sworn
we held
notation
11
Neth,
supra
Hahn v.
note
Id.
§See
3,
171,
note
motorist alcohol intoxication’ constituted ‘disрlayed signs a the on the reason for arrest sufficient to confer jurisdiction a DMV. While that factual statement of very general provided the the it was sufficient to meet the require- contrast, ment of In the notation conclusory “D.U.I.” no factual reason for officer’s decision to arrest on of under the influence of merely alcohol instead of him for Because citing speeding. of this the DMV could not jurisdictional deficiency, consider the officer’s at the his testimony reasons regarding arresting Snyder.16
CONCLUSION The sworn failed state a report for the sus- reason officer’s picion Snyder was vehicle motor while under operating alcohol, the influence of which resulted his arrest. Because the sworn did not include the report information by required 60-498.01(3)(a), it did not confer on the DMV jurisdiction to revoke Snyder’s license. affirm the order of the district court reversing revocation order and the DMV to directing reinstate Snyder’s driving privileges.
Affirmed. Neth, See Hahn C.J., Heavican, dissenting. view, I dissent. In respectfully majority’s failing case is report this that the officer completing stated a conclusion report rather than his reasons simply stating W. Ben arresting Snyder. concludes that under majority Neth,1 Hahn v. such a defect sworn requires finding did not confer report of Motor (DMV) Vehicles revoke license.
While some defects in a sworn might report jurisdictional, the technical defects of the sworn in this case not should to divest the operate jurisdiction. DMV better rulе better scheme reading statutory information from the at as to the “reasons for
missing least report, case, at other may by arrest”2 issue in this be established such means, Indeed, officer. including testimony in Hahn. to this court’s decision such permissible рrior Vehicles,3this court held Morrissey v. In Department of may, department proper, “[i]f nevertheless, means, such as establish its case other aof . . . .” testimony witness
There is no that the information in the sworn case was the DMV with factual in this accurate provided *6 Indeed, with which revocation basis to commence proceedings. 60-498.01(3), stated with report, compliance influence, while under the listed driving arrested for Snyder arrest, and further indicated Snyder’s submitted to a chemical tеst which Snyder ultimately request, limit. a blood concentration the legal showed alcohol over extent To the that the “reasons” provided insufficient, have been there is no might initially the conclusion had been adduced hearing, evidenсe by all to substantiate factual In necessary findings. particular, who arrested testified to certain observations Snyder he made of the The officer also during course traffic stop. conducted, and testified that he prior failed, fiеld and a breath test. tests sobriety preliminary the revocation of an statutory scheme which license an individual has been vehicle when operator’s while under the influence of alcohol is contained in 60-498.01. intent behind clear: the rеvocation process influence
Because who drive while under the persons alcohol a hazard to the health and of all safety present needed for the using highways, procedure persons swift and certain revocаtion of license of any operator’s (Reissue 2004). 60-498.01(3)(a) Rev. Stat. § Neb. 456, 459, Morrissey v. Neb. See (2002), Hahn disapproved, health and herself to be a has shown himself or who hazard . . . .4 safety that “swift and has seen fit to find
Given that the Legislature license is when necessary certain revocation” of operator’s influence, under the I dissent individual drives while respectfully defects in this conclusion that the technical from the majority’s to revoke Snyder’s divest the DMV of jurisdiction sworn report Douglas licеnse. I would instead reverse entered and affirm the revocation order District Court County the DMV. 4 Special Karel, Administrator of the Estate of Tina
David deceased, Karel, minor, Karel, Austin guardian through Karel, David his and next best Systems, friend, appellants, v. Nebraska Health doing nonprofit corporation, a Nebraska EmergiCare, West business as Clarkson appellees. Menolascino, M.D., and Scott August Filed No. S-05-1311.