Hoppens v. Nebraska Dept. of Motor Vehicles ( 2014 )

Nebraska Advance Sheets
HOPPENS v. NEBRASKA DEPT. OF MOTOR VEHICLES 857
Cite as 288 Neb. 857§ 3-508.4(b). Respondent has waived all additional proceed-
ings against him in connection herewith. Upon due consider-
ation, the court approves the conditional admission and enters
the orders as indicated below.
CONCLUSION
Respondent is ordered suspended for a period of 18 months
retroactive to the date of his temporary suspension, September
13, 2012, and respondent is ordered automatically reinstated
without further application to the court. Respondent is also
directed to pay costs and expenses in accordance with Neb.
Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb. Ct. R.
§§ 3-310(P) (rev. 2014) and 3-323(B) of the disciplinary rules
within 60 days after the order imposing costs and expenses, if
any, is entered by the court.
Judgment of suspension.
Order of reinstatement.
Daniel Hoppens, appellant, v. Nebraska Department
of Motor Vehicles, appellee.
___ N.W.2d ___
Filed August 22, 2014. No. S-13-755.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
3. Judgments. Whether a decision conforms to law is by definition a question
of law.
4. Judgments: Appeal and Error. An appellate court determines questions of law
independently of the lower court.
5. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Police Officers and Sheriffs: Jurisdiction. An arresting officer’s sworn report
under Neb. Rev. Stat. § 60-498.01(2) (Cum. Supp. 2012) serves two functions
essential to the administrative license revocation process: (1) It establishes a
prima facie basis for revocation, and (2) it confers jurisdiction on the Department
of Motor Vehicles.
Nebraska Advance Sheets
858 288 NEBRASKA REPORTS
6. Drunk Driving: Arrests: Proof. There are two components to the reasons for
arrest which must be included in a sworn report: (1) driving or actual physical
control of a motor vehicle and (2) doing so while under the influence of alcohol
or drugs.
7. Administrative Law: Jurisdiction: Drunk Driving: Proof. Sworn reports
which do not include factual reasons supporting the officer’s suspicion that a per-
son is driving or in actual physical control of a motor vehicle and doing so while
under the influence are not sufficient to confer jurisdiction on the Department of
Motor Vehicles.
8. Drunk Driving: Statutes. Nebraska’s driving under the influence statutes do not
apply to the operation or control of a motor vehicle on private property not open
to public access.
9. Statutes: Appeal and Error. The rules of statutory interpretation require an
appellate court to give effect to the entire language of a statute, and to rec-
oncile different provisions of the statutes so they are consistent, harmonious,
and sensible.
10. ____: ____. An appellate court gives statutory language its plain and ordinary
meaning, and the court will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous.
11. ____: ____. An appellate court gives effect to all parts of a statute and avoids
rejecting as superfluous or meaningless any word, clause, or sentence.
12. Statutes. A court will not read a meaning into a statute that is not warranted by
the legislative language.
13. Drunk Driving. A sworn report under Neb. Rev. Stat. § 60-498.01(2) (Cum.
Supp. 2012) does not need to state or support an inference that the individual
arrested drove or controlled a motor vehicle on property open to public access.
Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
Thomas Petersen, of Petersen Law Office, for appellant.
Jon Bruning, Attorney General, and Milissa Johnson-Wiles
for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Connolly, J.
SUMMARY
A police officer arrested Daniel Hoppens after he was found
in a motor vehicle parked in an Omaha Police Department
parking lot. The arresting officer observed signs of intoxica-
tion and asked Hoppens to perform a chemical test. Hoppens
refused, and following an administrative license revocation
Nebraska Advance Sheets
HOPPENS v. NEBRASKA DEPT. OF MOTOR VEHICLES 859
Cite as 288 Neb. 857(ALR) hearing, the Nebraska Department of Motor Vehicles
(DMV) revoked his driving privileges for 1 year and the dis-
trict court for Douglas County affirmed the revocation. On
appeal, Hoppens argues that the DMV did not have jurisdic-
tion to revoke his license because the sworn report submitted
by the arresting officer did not state that the motor vehicle
was on property open to public access. Finding no error,
we affirm.
BACKGROUND
Omaha police officer Scott Shymkewicz was “working
a DUI mini grant” on March 10, 2013. As he was fuel-
ing his cruiser at an Omaha Police Department parking lot
in downtown Omaha, he noticed a vehicle without police
markings in the lot. Shymkewicz approached the vehicle and
found Hoppens in the driver’s seat. Shymkewicz observed that
Hoppens had bloodshot eyes, slurred speech, and a strong odor
of alcohol on his breath. Hoppens told Shymkewicz that “he
had just driven into the lot” and was waiting for a friend to
exit a nearby bar. Shymkewicz testified that the parking lot is
private property and that signs posted on the lot warned it was
for police use only. Although Shymkewicz did not observe the
vehicle in motion, he concluded that Hoppens had driven the
vehicle, because the engine was running and Hoppens said that
he drove to the lot.
After Hoppens failed several field sobriety tests and an
“aqua breath sensor test,” Shymkewicz placed him under arrest
and took him inside police headquarters. Shymkewicz testi-
fied that he then read the postarrest chemical test advise-
ment form to Hoppens. In addition to a signature field for the
“Advising Officer,” the form contains a space for the signature
of a “Witnessing Officer.” Hoppens told Shymkewicz that there
needed to be a witnessing officer and refused to sign the form
without one. Shymkewicz told Hoppens that it was not neces-
sary for a witnessing officer, or even Hoppens himself, to sign
the form, but Hoppens nevertheless declined to take a chemi-
cal test.
Shymkewicz drafted a “Sworn Report,” which stated that
Hoppens had been directed to take a chemical test and refused.
Nebraska Advance Sheets
860 288 NEBRASKA REPORTS
The report further stated that Shymkewicz arrested Hoppens as
described in Neb. Rev. Stat. § 60-6,197 (Cum. Supp. 2012) and
provided the following reasons for the arrest:
HOPPENS was sitting in the driver’s seat of his car with
the keys in the ignition, engine running, and headlights on
in the Omaha Police Dept. headquarters parking lot where
a sign is posted prohibiting it. He admitted drinking a few
sips of beer and showed signs of intoxication: bloodshot
eyes, slurred speech, strong odor of alcoholic beverage on
his breath. He showed impairment on field tests and failed
an alco test.
On March 19, 2013, Hoppens filed a petition for an ALR
hearing.
On April 5, 2013, an ALR hearing was held before the DMV.
The hearing officer acknowledged that Hoppens, Shymkewicz,
and the attorney representing the DMV all agreed that the
parking lot was private property. However, the hearing officer
found that she did not need to address the issue, “because the
totality of the circumstances leading to [Hoppens’] arrest con-
vinces her that [Hoppens] had to have been intoxicated and
operating a motor vehicle prior to and at the time he drove into
the lot.” Because there was no evidence that anyone other than
Hoppens operated the vehicle and he had to have traveled on
public streets to reach the parking lot, the hearing officer found
that “it must be assumed that [Hoppens] operated his vehicle
on a public roadway while intoxicated prior to entering the
lot.” The hearing officer recommended that the director of the
DMV revoke Hoppens’ driver’s license. The director adopted
the findings and conclusions of the hearing officer and revoked
Hoppens’ driver’s license for 1 year.
Hoppens filed a petition for review in the district court,
arguing that he was on private property not open to public
access and therefore not required to submit to a chemical test.
The district court dismissed Hoppens’ petition. The court found
that “[w]hether the parking lot is private property not open to
public access is a question of fact to be determined at trial”
and that Shymkewicz’ sworn report was “clearly sufficient”
to confer jurisdiction on the DMV. The court also rejected
Nebraska Advance Sheets
HOPPENS v. NEBRASKA DEPT. OF MOTOR VEHICLES 861
Cite as 288 Neb. 857Hoppens’ argument that, because the vehicle was on property
not open to public access, the arresting officer lacked probable
cause to arrest.
ASSIGNMENT OF ERROR
Hoppens assigns, restated, that the DMV erred in conclud-
ing it had jurisdiction to revoke his driving privileges, because
the sworn report did not state or support an inference that
he had operated a motor vehicle on property open to pub-
lic access.
STANDARD OF REVIEW
[1-4] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record.1 When reviewing
an order of a district court under the act for errors appearing
on the record, the inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.2 Whether a decision
conforms to law is by definition a question of law.3 An appel-
late court determines questions of law independently of the
lower court.4
ANALYSIS
Hoppens argues that the sworn report was insufficient to
confer jurisdiction on the DMV. Specifically, Hoppens con-
tends that a sworn report must at least support an inference that
he was driving or in actual physical control of a motor vehicle
on property open to public access. The DMV argues that its
jurisdiction is not dependent on a statement of the vehicle’s
location in the sworn report. The following statutes guide
our analysis.
1
Underwood v. Nebraska State Patrol, 287 Neb. 204, 842 N.W.2d 57(2014).
2
Id.3
See id.4
See State v. Patton, 287 Neb. 899, 845 N.W.2d 572 (2014).
Nebraska Advance Sheets
862 288 NEBRASKA REPORTS
Any person who operates a motor vehicle in Nebraska is
deemed to have consented to submit to chemical tests to deter-
mine the concentration of alcohol in the blood, breath, or urine.
Peace officers may direct any person arrested for suspicion of
driving under the influence of alcohol to submit to a chemi-
cal test.5 A driver who refuses to submit is subject to the ALR
procedures found in Neb. Rev. Stat. §§ 60-498.01 to 60-498.04
(Cum. Supp. 2012).
The ALR process begins with a sworn report authored by the
arresting officer. If the driver refuses to submit to a chemical
test, § 60-498.01(2) provides:
The arresting peace officer shall within ten days forward
to the director a sworn report stating (a) that the person
was arrested as described in subsection (2) of section
60-6,197 and the reasons for such arrest, (b) that the per-
son was requested to submit to the required test, and (c)
that the person refused to submit to the required test.
Section 60-6,197(2) applies to “any person arrested for any
offense arising out of acts alleged to have been committed
while the person was driving or was in actual physical con-
trol of a motor vehicle while under the influence of alcoholic
liquor or drugs.” Unless the driver submits a petition to
the director, revocation is automatic 15 days after the date
of arrest.6
[5] An arresting officer’s sworn report serves two functions
essential to the ALR process. First, it establishes a prima facie
basis for revocation.7 Second, given the substantial role which
the sworn report plays, it must, at a minimum, contain the
information specified in the applicable statute to confer juris-
diction on the DMV.8 Here, our focus is on the “reasons for
such arrest” that must be included in the sworn report under
§ 60-498.01(2).
5
Snyder v. Department of Motor Vehicles, 274 Neb. 168, 736 N.W.2d 731(2007).
6
§ 60-498.01(4).
7
Snyder, supra note 5.
8
Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424 (2010); Hahn v. Neth, 270
Neb. 164, 699 N.W.2d 32 (2005).
Nebraska Advance Sheets
HOPPENS v. NEBRASKA DEPT. OF MOTOR VEHICLES 863
Cite as 288 Neb. 857We addressed the sufficiency of the reasons for arrest in a
sworn report in Betterman v. Department of Motor Vehicles.9
The sworn report in Betterman stated the following reasons for
the driver’s arrest: “‘[R]eckless driving. Driver displayed signs
of alcohol intoxication. Refused SFST and later breath test.’”10
We explained that “[a]n arrest described in § 60-6,197(2) is
an arrest ‘for any offense arising out of acts alleged to have
been committed while the person was driving or was in actual
physical control of a motor vehicle while under the influence
of alcoholic liquor or drugs.’”11 Examining the information
conveyed in the report, we held that “‘reckless driving’” and
“‘“displayed signs of alcohol intoxication”’” were sufficient
reasons for an arrest under § 60-6,197(2).12
[6,7] Under Betterman, there are two components to the
reasons for arrest which must be included in a sworn report:
(1) driving or actual physical control of a motor vehicle and
(2) doing so while under the influence of alcohol or drugs.
Both components are derived from the language on the face
of § 60-6,197(2). The statutory requirements are not onerous,13
and sworn reports which do not include factual reasons sup-
porting the officer’s suspicion that a person is both driving
or in actual physical control of a motor vehicle and doing
so while under the influence are not sufficient to confer
jurisdiction on the DMV. For example, we held in Snyder v.
Department of Motor Vehicles14 that “‘[s]peeding (20 OVER)/
D.U.I.’” was insufficient because it failed to state the officer’s
factual reasons for believing that the driver was intoxicated.
The Nebraska Court of Appeals has held that sworn reports
failed to include the factual reasons for suspecting that the
individual arrested was driving or in actual physical control of
9
Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d
570 (2007).
10
Id. at 182, 728 N.W.2d at 578.
11
Id. at 186, 728 N.W.2d at 581, quoting § 60-6,197(2).
12
Id.
13
See Johnson v. Neth, 276 Neb. 886, 758 N.W.2d 395 (2008).
14
Snyder, supra note 5, 274 Neb. at 168, 736 N.W.2d at 732.
Nebraska Advance Sheets
864 288 NEBRASKA REPORTS
a motor vehicle where the reasons for arrest were as follows:
“‘[P]assed out in front of [the gas] Station, near front doors.
Signs of alcohol intoxication,’”15 and “‘1 vehicle accident,
odor of Alcoholic beverage Bloodshot watery eyes, Slurred
Speech, Refused Field Sobriety. Refused PBT Refused Legal
Blood, Refused Urine sample test.’”16
[8] Hoppens does not dispute that Shymkewicz’ sworn report
includes sufficient factual reasons for suspecting that he was
in actual physical control of a motor vehicle while under the
influence of alcohol. Instead, Hoppens argues that the “reasons
for such arrest” in § 60-498.01(2) must also include a state-
ment of the arresting officer’s factual reasons for believing that
the vehicle was driven or controlled while on property open
to public access. Hoppens relies on the Nebraska Rules of
the Road,17 in which § 60-6,197 is codified. Section 60-6,108
provides that § 60-6,197 “appl[ies] upon highways and any-
where throughout the state except private property which is not
open to public access.” We have recognized that our driving
under the influence statutes, including criminal liability for the
refusal of a chemical test, do not apply to the operation or con-
trol of a motor vehicle on private property not open to public
access.18 Hoppens argues, in essence, that the phrase “arrested
as described in subsection (2) of section 60-6,197 and the rea-
sons for such arrest” found in § 60-498.01(2) incorporates a
requirement that the sworn report include the facts necessary
to sustain a criminal conviction.
[9-12] Hoppens’ assignment of error calls upon us to inter-
pret § 60-498.01. The rules of statutory interpretation require
an appellate court to give effect to the entire language of a
statute, and to reconcile different provisions of the statutes so
15
Yenney v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 446, 451, 729
N.W.2d 95, 99 (2007).
16
Barnett v. Department of Motor Vehicles, 17 Neb. App. 795, 797, 770
N.W.2d 672, 674 (2009).
17
See Neb. Rev. Stat. §§ 60-601 to 60-6,382 (Reissue 2010, Cum. Supp.
2012 & Supp. 2013).
18
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
Nebraska Advance Sheets
HOPPENS v. NEBRASKA DEPT. OF MOTOR VEHICLES 865
Cite as 288 Neb. 857they are consistent, harmonious, and sensible.19 We give statu-
tory language its plain and ordinary meaning, and we will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous.20 We will give
effect to all parts of a statute and avoid rejecting as superfluous
or meaningless any word, clause, or sentence.21 And we will
not read a meaning into a statute that is not warranted by the
legislative language.22
[13] We conclude that the reasons for an arrest as described
in § 60-6,197(2) include those reasons described in the text of
that section. Namely, the sworn report must state the arresting
officer’s reasons for believing that the individual arrested was
driving or in actual physical control of a motor vehicle while
under the influence of alcohol or drugs. We do not read the
disputed clause of § 60-498.01(2) to incorporate the Nebraska
Rules of the Road and any other factual predicates for a
criminal conviction under our driving under the influence laws.
Furthermore, there is no requirement in § 60-498.01(2) that the
sworn report describe the requisites of a valid arrest. In fact,
the Legislature amended the predecessor to § 60-498.01(2) in
2003 to remove the requirement that the arresting officer aver
that the driver was “validly” arrested under § 60-6,197(2).23 We
hold that the sworn report under § 60-498.01(2) does not need
to state or support an inference that the individual arrested
drove or controlled a motor vehicle on property open to pub-
lic access.
CONCLUSION
We conclude that the arresting officer’s sworn report under
§ 60-498.01(2) does not need to state or support an inference
that the motor vehicle was driven or operated on property
open to public access to confer jurisdiction on the DMV. The
19
ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014).
20
Id.21
See id.22
See id.23
2003 Neb. Laws, L.B. 209, § 4.
Nebraska Advance Sheets
866 288 NEBRASKA REPORTS
reasons for arrest that must be included in a sworn report are
those facts supporting the officer’s suspicion that the indi-
vidual arrested drove or physically controlled a motor vehicle
while under the influence of alcohol or drugs. Hoppens does
not dispute that Shymkewicz’ sworn report included these
factual reasons or argue that the sworn report was otherwise
deficient. Accordingly, we affirm the judgment of the dis-
trict court.
We note that in Sherman v. Neth,24 the Court of Appeals
held that a sworn report must contain sufficient assertions to
allow an inference that the motorist was on a public road or
private property open to public access. Although we reversed
the Court of Appeals’ decision on other grounds in Sherman
v. Neth25 and remanded the cause to the Court of Appeals
with orders to vacate its decision, we take this opportu-
nity to disapprove the above-stated holding in the Court of
Appeals’ decision.
Affirmed.
Heavican, C.J., participating on briefs.
24
Sherman v. Neth, 19 Neb. App. 435, 808 N.W.2d 365 (2011).
25
Sherman v. Neth, 283 Neb. 895, 813 N.W.2d 501 (2012).
Telrite Corporation, doing business as Life
Wireless, appellant, v. Nebraska Public
Service Commission, appellee.
___ N.W.2d ___
Filed August 22, 2014. No. S-13-870.
1. Public Service Commission: Appeal and Error. Under Neb. Rev. Stat.
§ 75-136(2) (Supp. 2013), an appellate court reviews an order of the Nebraska
Public Service Commission de novo on the record.
2. Appeal and Error. In a review de novo on the record, an appellate court reap-
praises the evidence as presented by the record and reaches its own independent
conclusions concerning the matters at issue.
3. Public Service Commission: Appeal and Error. Under Neb. Rev. Stat. § 75-136(Supp. 2013), an appellate court must reappraise the evidence on the record as