Biddlecome v. Conrad

Decision Date09 February 1996
Docket NumberNo. S-94-090,S-94-090
Citation249 Neb. 282,543 N.W.2d 170
PartiesMarshall K. BIDDLECOME, Appellee, v. Jack C. CONRAD, Director, State of Nebraska, Department of Motor Vehicles, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Rules of the Supreme Court: Appeal and Error. While Neb.Rev.Stat. § 25-1919 (Cum.Supp.1994) and Neb. Ct. R. of Prac. 9D(1)d (rev. 1992) provide that consideration of the cause on appeal is limited to errors assigned and discussed by the parties, that same statute and rule permit this court to note any plain error not assigned.

2. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

3. Blood, Breath, and Urine Tests: Police Officers and Sheriffs. Upon requesting a motorist to submit to a chemical test, an officer must advise that motorist of the consequences both of refusing to submit to the test and of submitting to and failing the test.

4. Licenses and Permits: Revocation. In enacting and amending the administrative license revocation statutes, the Legislature made the advisement of consequences mandatory.

Appeal from the District Court for Buffalo County; John P. Icenogle, Judge.

Don Stenberg, Attorney General, and Jay C. Hinsley, Lincoln, for appellant.

David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., Kearney, for appellee.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

WHITE, Chief Justice.

Following an administrative hearing, Jack C. Conrad, director of the Nebraska Department of Motor Vehicles, revoked the motor vehicle operator's license of Marshall K. Biddlecome for 90 days pursuant to Conrad's authority under the administrative license revocation statutes, Neb.Rev.Stat. §§ 60-6,205 to 60-6,208 (Reissue 1993). (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 Neb.Rev.Stat. § 60-601 et seq. (Reissue 1993 & Cum.Supp.1994). For convenience, we use the new numbering scheme.) Biddlecome appealed the revocation decision to the district court for Buffalo County. On December 20, 1993, the district court reversed Conrad's order and reinstated Biddlecome's license. Conrad appeals from that decision; we affirm, albeit on grounds unrelated to the issues presented for appeal.

On March 23, 1993, Officer John Schmitt of the Kearney Police Department arrested Biddlecome for driving under the influence of alcohol. Biddlecome subsequently received notice of revocation of his operator's license from Conrad through certified mail, in accordance with § 60-6,205(5)(b). The crux of Biddlecome's complaint at his administrative hearing, and later to the district court, was the failure of the Kearney Police Department to serve Biddlecome personally; under § 60-6,205(4), the arresting officer shall serve notice of revocation on the motorist unless he is unable to do so.

At Biddlecome's administrative hearing, Officer Schmitt testified under cross-examination that no physical reason (such as an incorrect address) actually rendered him unable to perfect personal service of Biddlecome's notice of revocation. Biddlecome argued successfully to the district court that Officer Schmitt's deviation from the administrative license revocation statutes negated the director's authority to revoke Biddlecome's license.

We need not address the findings of the district court in order to dispose of the director's appeal. The form by which Officer Schmitt advised Biddlecome of the statutory consequences of failing a chemical test fails to protect Biddlecome's rights adequately under our decision in Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995). That Biddlecome did not raise this error below is of no matter. While Neb.Rev.Stat. § 25-1919 (Cum.Supp.1994) and Neb. Ct. R. of Prac. 9D(1)d (rev. 1992) provide that consideration of the cause on appeal is limited to errors assigned and discussed by the parties, that same statute and rule permit this court to note any plain error not assigned. Cockle v. Cockle, 204 Neb. 88, 281 N.W.2d 392 (1979).

Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

In re Estate of Morse, 248 Neb. 896, 897, 540 N.W.2d 131, 132 (1995). In the present case, the inadequacy of the license revocation advisory form constitutes such an error under our holding in Smith v. State, supra.

In Smith, we upheld an order vacating administrative license revocation pursuant to § 60-6,197(10), which mandates that upon...

To continue reading

Request your trial
14 cases
  • Kramer v. Kramer
    • United States
    • Nebraska Supreme Court
    • May 23, 1997
    ...power to address plain error, see, Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997); Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996), we order that the amount of the judgment entered in the husband's favor be reduced to $7,003.04, and affirm the judgme......
  • State v. Wilson
    • United States
    • Hawaii Supreme Court
    • October 28, 1999
    ...the form an inaccurate statement of the law, thereby necessitating driver's license suspension to be set aside); Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170, 172 (1996) (because warnings omitted various consequences of both consenting to and refusing chemical alcohol test, and becaus......
  • State v. Roucka
    • United States
    • Nebraska Supreme Court
    • January 30, 1998
    ...however, that even if the advisory form complies with Smith, it is still inadequate in light of our decisions in Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996), and Perrine v. State, supra, because those cases raise an additional deficiency in the advisory In Biddlecome, we held ......
  • Wolgamott v. Abramson
    • United States
    • Nebraska Court of Appeals
    • February 25, 1997
    ...error and precludes administrative license revocation. See, Perrine v. State, 249 Neb. 518, 544 N.W.2d 364 (1996); Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996). See, also, State v. Christner, 251 Neb. 549, 557 N.W.2d 707 (1997); State v. Emrich, 251 Neb. 540, 557 N.W.2d 674 (19......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT