State v. Albarenga

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www.nebraska.gov/apps-courts-epub/
03/08/2022 08:06 AM CST
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. ALBARENGA
Cite as 30 Neb. App. 711State of Nebraska, appellee, v.
Seidy N. Albarenga, appellant.
___ N.W.2d ___
Filed March 8, 2022. No. A-21-213.
1. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judges: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Statutes: Legislature: Intent. The fundamental objective of statutory
interpretation is to ascertain and carry out the Legislature’s intent.
5. Statutes. When reading a statute, what it does not say is often as impor-
tant as what it does say.
6. ____. A court does not examine statutes in isolation; rather, all statutes
in pari materia must be taken together and construed as if they were
one law.
7. Statutes: Legislature: Intent. In construing a statute, the legislative
intention is to be determined from a general consideration of the whole
act with reference to the subject matter to which it applies and the
particular topic under which the language in question is found, and the
intent as deduced from the whole will prevail over that of a particular
part considered separately.
8. Administrative Law: Judicial Notice: Appeal and Error. Because
establishing the existence and contents of a particular administrative
rule or regulation at any given time is often a difficult and uncertain
process, it is an established principle that, as a general rule, Nebraska
appellate courts will not take judicial notice of administrative rules
or regulations.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. ALBARENGA
Cite as 30 Neb. App. 7119. ____: ____: ____. Appellate courts will take judicial notice of general
rules and regulations established and published by Nebraska state agen-
cies under authority of law.
10. Administrative Law. Agency regulations properly adopted and filed
with the Secretary of State of Nebraska have the effect of statutory law.
11. ____. Regulations bind the agency that promulgated them just as
they bind individual citizens, even if the adoption of the regulations
was discretionary.
12. ____. For purposes of construction, a rule or regulation of an adminis-
trative agency is generally treated like a statute.
13. Statutes. To the extent there is a conflict between two statutes, the spe-
cific statute controls over the general statute.
Appeal from the District Court for Lancaster County,
Andrew R. Jacobsen, Judge, on appeal thereto from the
County Court for Lancaster County, Joseph E. Dalton, Judge.
Judgment of District Court affirmed.
Joe Nigro, Lancaster County Public Defender, and Nathan
Sohriakoff for appellant.
Christine A. Loseke, Assistant Lincoln City Prosecutor, for
appellee.
Pirtle, Chief Judge, and Moore and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Seidy N. Albarenga appeals from an order of the district
court for Lancaster County affirming the county court’s deci-
sion overruling Albarenga’s motion to quash a charge of violat-
ing an automatic traffic signal, in violation of Lincoln Mun.
Code § 10.12.030 (2017), and her motion to suppress evidence
obtained as a result of a traffic stop. For the reasons that fol-
low, we affirm.
BACKGROUND
The underlying facts of this case are not in dispute. At
approximately 3 a.m. on June 28, 2019, an officer of the
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. ALBARENGA
Cite as 30 Neb. App. 711Lincoln Police Department observed Albarenga driving east-
bound on P Street between 16th and 17th Streets in Lincoln,
Nebraska. Albarenga turned northbound on 17th Street, and the
officer followed until they both came to a stop in the western­
most lane at the intersection of 17th and Q Streets. At that
intersection, 17th Street is a one-way street running north with
three lanes and Q Street is a one-way street running west.
Vehicles approaching the intersection on 17th Street face
a traffic light with three distinct traffic control devices. The
easternmost lane faces a device that displays green, yellow, and
red circular indications with a sign directing traffic to proceed
straight through only. The middle and westernmost lanes face
devices that display green, yellow, and red arrow indications
with signs directing traffic to turn left only.
When Albarenga and the officer came to a stop in the west-
ernmost lane, the traffic control device displayed a red arrow
indication. After coming to a complete stop, Albarenga turned
left without waiting for the red arrow indication to change
to green. Shortly thereafter, the officer initiated a traffic stop
“[b]ecause [Albarenga] violated the left turn arrow.” The offi-
cer observed Albarenga to have slurred speech, bloodshot
and watery eyes, and an odor of alcohol. Albarenga admitted
to consuming alcohol, and field sobriety tests showed signs
of impairment. Albarenga was arrested, and a chemical test
showed a reading of 0.142 of a gram of alcohol per 210 liters
of breath.
On July 3, 2019, a prosecuting attorney for the city of
Lincoln filed a criminal complaint against Albarenga in county
court, charging her with count 1, driving under the influence,
in violation of Lincoln Mun. Code § 10.16.030 (2017), and
with count 2, violating an automatic traffic signal, in viola-
tion of § 10.12.030. Albarenga entered a plea of not guilty on
both counts.
Albarenga filed two pretrial motions: a motion to suppress
evidence obtained as a result of the traffic stop and a motion
to quash count 2 of the complaint. Both motions revolved
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. ALBARENGA
Cite as 30 Neb. App. 711around Albarenga’s argument that there is a direct conflict
between § 10.12.030 and Neb. Rev. Stat § 60-6,123 (Reissue
2021). The county court found no conflict between § 10.12.030
and § 60-6,123 and overruled both the motion to suppress and
the motion to quash at respective hearings thereon.
In March 2020, the county court convened for a stipulated
bench trial on the criminal complaint. Albarenga renewed her
pretrial motions, and the court took the matter under advise-
ment. On April 27, the county court entered an order again
finding no conflict between the ordinance and the statute and
overruling Albarenga’s renewed motions. The court reasoned
as follows:
Defense counsel argues that the City Ordinance is in
conflict with the State Statute. The Court disagrees. The
City Ordinance makes it illegal to turn left when the traf-
fic control device is illuminated with a red arrow. This
is exactly the exception to [§ 60-6,123(3)(c)] which pro-
vides, “Except where a traffic control device is in place
prohibiting a turn”. The traffic control devices in place
at the intersection of 17th and Q streets for Northbound
traffic in the furthest left or west two lanes display
arrows only. Under the Lincoln Municipal Ordinance,
one must stop and remain stopped as long as the arrow
is red. . . . The Court finds that there are different traffic
signal devices governing stopping, one utilizes a round
red light and one which utilizes a red arrow. These two
signal devi[c]es have different rules. They are not in con-
flict with each other.
The court ultimately found Albarenga guilty on both counts of
the complaint and issued sentences accordingly.
Albarenga appealed to the district court, assigning that
the county court erred in (1) finding no conflict between
§ 10.12.030 and § 60-6,123, (2) overruling the motion to sup-
press, and (3) overruling the motion to quash. On February 12,
2021, the district court entered an order affirming the county
court’s judgment “in all respects.” This appeal followed.
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STATE v. ALBARENGA
Cite as 30 Neb. App. 711ASSIGNMENTS OF ERROR
Albarenga assigns, restated, that the district court erred in
(1) affirming the county court’s finding of no conflict between
§ 10.12.30 and § 60-6,123, (2) affirming the county court’s
decision overruling Albarenga’s motion to suppress, and (3)
affirming the county court’s decision overruling Albarenga’s
motion to quash.
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. State
v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).
[2,3] Both the district court and a higher appellate court gen-
erally review appeals from the county court for error appearing
on the record. State v. Avey, 288 Neb. 233, 846 N.W.2d 662(2014). When reviewing a judgment for errors appearing on
the record, an appellate court’s inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id.ANALYSIS
[4] Albarenga first assigns that the district court erred in
affirming the county court’s finding of no conflict between
§ 10.12.030 and § 60-6,123. Statutory interpretation is a ques-
tion of law that an appellate court resolves independently of
the trial court. State v. Thompson, supra. The fundamental
objective of statutory interpretation is to ascertain and carry out
the Legislature’s intent. Id.Count 2 of the criminal complaint charged Albarenga with
violating § 10.12.030. In pertinent part, § 10.12.030 provides
as follows: “RED ARROW: Vehicular traffic facing a lighted
steady red arrow shall stop before entering the crosswalk on
the near side of the intersection and remain stopped until a
green light is displayed, except as otherwise permitted in this
title.” In addition, Lincoln Mun. Code § 10.14.220 (2017) pro-
vides in part as follows:
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. ALBARENGA
Cite as 30 Neb. App. 711Except where a traffic control device is in place pro-
hibiting a turn or a steady red arrow signal indication is
displayed, the operator of a vehicle traveling on a one-
way street facing a steady circular red signal may, after
stopping, cautiously drive such vehicle into the intersec-
tion to make a left turn onto another one-way street on
which all traffic is moving to said vehicle’s left.
There is no dispute that the plain language of §§ 10.12.030
and 10.14.220 prohibits making a left turn on a red arrow indi-
cation under the circumstances described therein. Albarenga
contends § 10.12.030 conflicts with § 60-6,123 because she
interprets § 60-6,123 to permit making a left turn on a red arrow
indication under the same circumstances. Section 60-6,123 pro-
vides as follows:
Whenever traffic is controlled by traffic control sig-
nals exhibiting different colored lights or colored lighted
arrows, successively one at a time or in combination, only
the colors green, red, and yellow shall be used, except for
special pedestrian signals carrying a word legend, num-
ber, or symbol, and such lights shall indicate and apply to
drivers of vehicles and pedestrians as follows:
(1)(a) Vehicular traffic facing a circular green indica-
tion may proceed straight through or turn right or left
unless a sign at such place prohibits either such turn,
but vehicular traffic, including vehicles turning right or
left, shall yield the right-of-way to other vehicles and to
pedestrians lawfully within the intersection or an adjacent
crosswalk at the time such indication is exhibited;
(b) Vehicular traffic facing a green arrow indication
shown alone or in combination with another indication,
may cautiously enter the intersection only to make the
movement indicated by such arrow or such other move-
ment as is permitted by other indications shown at the
same time, and such vehicular traffic shall yield the
right-of-way to pedestrians lawfully within an adjacent
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STATE v. ALBARENGA
Cite as 30 Neb. App. 711crosswalk and to other traffic lawfully using the intersec-
tion; and
....
(3)(a) Vehicular traffic facing a steady red indication
alone shall stop at a clearly marked stop line or shall stop,
if there is no such line, before entering the crosswalk on
the near side of the intersection or, if there is no cross-
walk, before entering the intersection. The traffic shall
remain standing until an indication to proceed is shown
except as provided in subdivisions (3)(b) and (3)(c) of
this section;
(b) Except where a traffic control device is in place
prohibiting a turn, vehicular traffic facing a steady red
indication may cautiously enter the intersection to make
a right turn after stopping as required by subdivision
(3)(a) of this section. Such vehicular traffic shall yield
the right-of-way to pedestrians lawfully within an adja-
cent crosswalk and to other traffic lawfully using the
intersection;
(c) Except where a traffic control device is in place
prohibiting a turn, vehicular traffic facing a steady red
indication at the intersection of two one-way streets may
cautiously enter the intersection to make a left turn after
stopping as required by subdivision (3)(a) of this sec-
tion. Such vehicular traffic shall yield the right-of-way to
pedestrians lawfully within an adjacent crosswalk and to
other traffic lawfully using the intersection[.]
The central dispute on appeal, as it was before the county
and district courts, is the proper interpretation of § 60-6,123(3)(c)
above. For clarity’s sake, we divide § 60-6,123(3)(c) into two
distinct clauses. The second clause contains the general rule
that vehicular traffic facing a “steady red indication” may, after
stopping, turn left at an intersection of two one-way streets.
The first clause contains an exception to the general rule, pro-
hibiting such a turn when there is “a traffic control device” to
that effect.
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30 Nebraska Appellate Reports
STATE v. ALBARENGA
Cite as 30 Neb. App. 711The county court found, and the district court agreed, that a
red arrow indication constitutes “‘a traffic control device . . .
prohibiting a turn[,]’” such that the exception in the first clause
was dispositive. Albarenga, on the other hand, argues that the
term “steady red indication” refers generally to both circular
and arrow indications such that the general rule applies equally
to both. Thus, Albarenga contends, the interpretation adopted
by the county and district courts results in the exception swal-
lowing the rule, because it erroneously equates a steady red
indication with a traffic control device prohibiting a turn. In
other words, Albarenga advocates for a single rule which per-
mits making a left turn under the circumstances described in
§ 60-6,123, regardless of whether the steady red indication is
an arrow or a circle.
[5] We begin by acknowledging the logic of Albarenga’s
argument. Section 60-6,123 as a whole demonstrates the
Legislature’s awareness of both circular and arrow indica-
tions. The introductory clause refers to both “colored lights”
and “colored lighted arrows.” Section 60-6,123(1)(a) refers to
“a circular green indication,” and § 60-6,123(1)(b) refers to “a
green arrow indication.” Yet, subsections (3)(a) and (3)(c) of
§ 60-6,123 refer generally to “a steady red indication” without
distinguishing between red arrow and red circular indications.
“When reading a statute, what it does not say is often as impor-
tant as what it does say.” Robinson v. Houston, 298 Neb. 746,
751, 905 N.W.2d 636, 640 (2018) (emphasis in original). Thus,
we agree with Albarenga that § 60-6,123, when read in isola-
tion, suggests that the term “steady red indication” refers gen-
erally to both red arrow and red circular indications. However,
our analysis does not end there.
[6,7] We do not examine statutes in isolation; rather, all
statutes in pari materia must be taken together and construed
as if they were one law. See State v. Jedlicka, 305 Neb. 52,
938 N.W.2d 854 (2020). In construing a statute, the legisla-
tive intention is to be determined from a general consideration
of the whole act with reference to the subject matter to which
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. ALBARENGA
Cite as 30 Neb. App. 711it applies and the particular topic under which the language in
question is found, and the intent as deduced from the whole
will prevail over that of a particular part considered sepa-
rately. Id.Section 60-6,123 is just one section of the Nebraska Rules
of the Road. See Neb. Rev. Stat. §§ 60-601 to 60-6,383
(Reissue 2021). Section 60-602 declares, in pertinent part, that
the Legislature’s purpose in enacting the rules was to “make
more uniform highway traffic laws between states[,] increase
the efficiency of streets and highways by the application of
uniform traffic control devices[, and] assist law enforcement
by encouraging voluntary compliance with law through uni-
form rules.” Moreover, § 60-604 provides that “[t]he Nebraska
Rules of the Road shall be so interpreted and construed as to
effectuate their general purpose to make uniform the laws relat-
ing to motor vehicles.” In furtherance of uniformity, § 60-6,118
provides as follows:
Consistent with the provisions of the Nebraska Rules
of the Road, the Department of Transportation may adopt
and promulgate rules and regulations adopting and imple-
menting a manual providing a uniform system of traffic
control devices on all highways within this state which,
together with any supplements adopted by the depart-
ment, shall be known as the Manual on Uniform Traffic
Control Devices.
Pursuant to § 60-6,118, Nebraska’s Department of Transpor­
tation (NDOT) has adopted the Manual on Uniform Traffic
Control Devices (2009) (Manual), see 411 Neb. Admin. Code,
ch. 1, § 001 (2019), which is filed with the Secretary of State
of Nebraska.
[8] However, the NDOT regulation adopting the Manual was
not offered into evidence or judicially noticed by the county
court. Thus, neither the regulation nor the Manual itself appear
in the appellate record. Because establishing the existence and
contents of a particular administrative rule or regulation at any
given time is often a difficult and uncertain process, it is an
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STATE v. ALBARENGA
Cite as 30 Neb. App. 711established principle that, as a general rule, Nebraska appellate
courts will not take judicial notice of administrative rules or
regulations. See, Central Platte NRD v. State of Wyoming, 245
Neb. 439, 513 N.W.2d 847 (1994); Dairyland Power Co-op v.
State Bd. of Equal., 238 Neb. 696, 472 N.W.2d 363 (1991);
Donahoo v. Nebraska Liquor Control Comm., 229 Neb. 197,
426 N.W.2d 250 (1988).
[9] On the other hand, the Nebraska Supreme Court has
held that appellate courts will take judicial notice of general
rules and regulations established and published by Nebraska
state agencies under authority of law. City of Lincoln v. Central
Platte NRD, 263 Neb. 141, 638 N.W.2d 839 (2002). We find
that the Manual constitutes a general rule or regulation estab-
lished and published by NDOT under authority of law. Thus,
we take judicial notice of the Manual to the extent it is relevant
to our analysis of the purported conflict between § 10.12.030
and § 60-6,123.
As it pertains to this appeal, the Manual provides as follows:
C. Steady red signal indications shall have the follow-
ing meanings:
1. Vehicular traffic facing a steady CIRCULAR RED
signal indication, unless entering the intersection to make
another movement permitted by another signal indication,
shall stop . . . and shall remain stopped until a signal
indication to proceed is displayed, or as provided below.
Except when a traffic control device is in place pro-
hibiting a turn on red or a steady RED ARROW signal
indication is displayed, vehicular traffic facing a steady
CIRCULAR RED signal indication is permitted to enter
the intersection to turn right, or to turn left from a one-
way street into a one-way street, after stopping. . . .
2. Vehicular traffic facing a steady RED ARROW
signal indication shall not enter the intersection to make
the movement indicated by the arrow and, unless enter-
ing the intersection to make another movement permit-
ted by another signal indication, shall stop . . . and shall
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STATE v. ALBARENGA
Cite as 30 Neb. App. 711remain stopped until a signal indication or other traffic
control device permitting the movement indicated by such
RED ARROW is displayed.
When a traffic control device is in place permitting
a turn on a steady RED ARROW indication, vehicular
traffic facing a steady RED ARROW signal indication is
permitted to enter the intersection to make the movement
indicated by the arrow signal indication, after stopping.
§ 4D.04, ¶ 3, items C.1 & C.2. The Manual further provides
that “[e]xcept as described in Item C.2 in Paragraph 3 of
Section 4D.04, turning on a steady RED ARROW signal indi-
cation shall not be permitted.” § 4D.05, ¶ 3, item D. The plain
language of the Manual makes clear that a red arrow indication
is intended to prohibit the movement indicated by the arrow
unless there is “a traffic control device . . . in place permitting
a turn on a steady RED ARROW signal indication.” § 4D.04,
¶ 3, item C.2.
[10-13] As previously noted, the Manual was adopted by
NDOT pursuant to § 60-6,118 and codified at 411 Neb. Admin.
Code, ch. 1, § 001 (2019). Agency regulations properly adopted
and filed with the Secretary of State of Nebraska have the
effect of statutory law. Melanie M. v. Winterer, 290 Neb. 764,
862 N.W.2d 76 (2015). Such regulations bind the agency that
promulgated them just as they bind individual citizens, even if
the adoption of the regulations was discretionary. Id. For pur-
poses of construction, a rule or regulation of an administrative
agency is generally treated like a statute. Id. To the extent there
is a conflict between two statutes, the specific statute controls
over the general statute. Davio v. Nebraska Dept. of Health &
Human Servs., 280 Neb. 263, 786 N.W.2d 655 (2010).
We observe that the Manual is more specific than § 60-6,123
with regard to red arrow indications such that, to the extent
§ 60-6,123 conflicts with the Manual, the Manual is the
controlling law. Construing the Nebraska Rules of the Road
together as one law, we determine the Legislature intended red
arrow indications to have the meaning and effect described
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STATE v. ALBARENGA
Cite as 30 Neb. App. 711at length in the Manual. Having reviewed the relevant sections
of the Manual, we conclude that the language of §§ 10.12.030
and 10.14.220 is wholly consistent with Nebraska law on red
arrow indications. We also agree with the county and district
courts that red arrow and red circular indications are sub-
ject to different nonconflicting rules. Accordingly, we reject
Albarenga’s argument to the contrary and adopt the interpreta-
tion of § 60-6,123 adopted by the county and district courts.
That is, for purposes of § 60-6,123(3)(c), a red arrow indica-
tion constitutes a traffic control device prohibiting a turn.
Thus, we find no conflict between § 10.12.030 and § 60-6,123,
and we affirm the order of the district court, affirming the
county court’s finding, with respect to Albarenga’s first assign-
ment of error.
Albarenga’s second and third assignments of error ­pertain
to the county court’s decision overruling her motion to sup-
press and motion to quash respectively. With respect to the
motion to suppress, Albarenga argues the alleged conflict
between § 10.12.030 and § 60-6,123 rendered § 10.12.030
unenforceable and therefore undermined the reasonable sus-
picion necessary to initiate a traffic stop. With respect to the
motion to quash, Albarenga argues the alleged conflict ren-
dered § 10.12.030 unenforceable under principles of preemp-
tion. Because we find no conflict between § 10.12.030 and
§ 60-6,123, Albarenga’s second and third assignments of error
are without merit. Therefore, we affirm the order of the district
court, affirming the county court’s decisions, with respect to
Albarenga’s second and third assignments of error.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
order on appeal affirming the county court’s judgment.
Affirmed.