Chase v. Neth, S-04-501.

CourtSupreme Court of Nebraska
Citation269 Neb. 882,697 N.W.2d 675
Docket NumberNo. S-04-501.,S-04-501.
PartiesKeri L. CHASE, appellee, v. Beverly NETH, director of the Nebraska Department of Motor Vehicles, appellant.
Decision Date27 May 2005

697 N.W.2d 675
269 Neb. 882

Keri L. CHASE, appellee,
Beverly NETH, director of the Nebraska Department of Motor Vehicles, appellant

No. S-04-501.

Supreme Court of Nebraska.

May 27, 2005.

697 N.W.2d 678
Jon Bruning, Attorney General, and Milissa Johnson-Wiles, Lincoln, for appellant

Russel L. Jones, of Jones Law Office, North Platte, for appellee.

697 N.W.2d 679


The district court for Lincoln County held that Neb.Rev.Stat. § 60-498.01 (Supp. 2003), which is part of the Nebraska administrative license revocation (ALR) procedure, violates due process rights when applied to persons who refuse to submit to a chemical test of their breath or blood because it does not allow such persons to raise Fourth Amendment challenges at the ALR hearing. The Department of Motor Vehicles filed this timely appeal. Based upon our independent review, we reverse, and remand for further proceedings.


At approximately 1:20 a.m. on November 8, 2003, Nebraska State Patrol Trooper Matthew Naughtin observed a vehicle traveling on U.S. Highway 83 in Lincoln County, Nebraska, without its headlights illuminated. Naughtin stopped the vehicle, which was operated by Keri L. Chase. Naughtin observed that Chase seemed confused, and he detected the odor of alcohol. Naughtin asked Chase for her license, registration, and proof of insurance, but she was unable to produce these documents from among other documents in her purse. Naughtin then asked Chase to exit her vehicle and walk back to his patrol unit. Once inside the patrol unit, Naughtin again detected the odor of alcohol as Chase spoke to him.

Naughtin asked Chase if she had been drinking, and she replied that she had three "`Grand Marniers boom boom boom.'" Naughtin administered several field sobriety tests, which Chase was unable to perform successfully. Naughtin then attempted to administer a preliminary breath test; Chase refused, despite Naughtin's explanation that refusal to take the test constituted a separate offense. At that point, Naughtin arrested Chase for driving under the influence (DUI) and transported her to the Great Plains Regional Medical Center in North Platte, Nebraska. He requested that she submit a blood sample for alcohol testing, again advising her that refusal to submit to the test was a separate chargeable offense. According to Naughtin, Chase refused to give a blood sample for the test.

Chase did not testify at the ALR hearing, but offered her affidavit stating that she refused to take the blood test because she had worked in the health care industry and knew there was a risk in taking blood samples. Chase averred that she wanted to verify the credentials of the person drawing the blood and verify that the person was using proper procedures. She averred that she was not given an opportunity to speak with the person because Naughtin just assumed she was refusing the blood test and that if she had been satisfied with the procedure and the credentials, she would have submitted to the test.

At the conclusion of the evidence, Chase's counsel argued to the hearing officer that her refusal to take the blood test was reasonable. In the alternative, counsel argued that because there was no evidence presented that Chase was driving a motor vehicle at a time when headlights would be required by Nebraska law, there was no reasonable suspicion to stop the vehicle.

On December 22, 2003, the hearing officer issued an order finding that Naughtin's initial stop of Chase's vehicle was reasonable; that Naughtin had probable cause to believe Chase had been operating a motor vehicle under the influence of alcohol, based on his observations of her physical

697 N.W.2d 680
condition, her performance on the field sobriety tests, and her admission that she had been drinking; and that a reasonable person in the position of Naughtin would believe that Chase had refused the chemical test. The hearing officer thus recommended that Chase's license be revoked. On December 23, the director of the Department of Motor Vehicles formally adopted the order of the hearing officer, and Chase's license was revoked for a period of 1 year. See Neb.Rev.Stat. § 60-498.02 (Supp.2003)

Chase appealed to the district court, pursuant to the Administrative Procedure Act. In an order entered on March 26, 2004, the district court reversed, based upon its determination that Chase's right to due process was violated because the ALR statutes did not permit her to directly or indirectly challenge the validity of her arrest. The district court based its decision on "a logical extension of the rationale" contained in Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003). The Department filed this timely appeal, as well as a notice of constitutional question pursuant to Neb. Ct. R. of Prac. 9E (rev.2001).


The Department's sole assignment of error is that the district court erred in finding § 60-498.01 unconstitutional as it applies to cases where the motorist refuses to submit to a chemical test.


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. Hass v. Neth, supra; American Legion v. Nebraska Liquor Control Comm., 265 Neb. 112, 655 N.W.2d 38 (2003). 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. Id.

Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court. Hass v. Neth, supra; In re Application of Lincoln Electric System, 265 Neb. 70, 655 N.W.2d 363 (2003).

Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below. Hass v. Neth, supra.



At the time of Chase's arrest on November 8, 2003, Neb.Rev.Stat. § 60-6,197(1) (Supp.2003) provided:

Any person who operates or has in his or her actual physical control a motor vehicle in this state shall be deemed to have given his or her consent to submit to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the concentration of alcohol or the presence of drugs in such blood, breath, or urine.

Refusal to submit to such testing subjects the motorist to criminal prosecution as well as to ALR procedures. § 60-6,197(3) and (4). Regarding the latter, § 60-498.01(2) provided in relevant part:

If a person arrested pursuant to section 60-6,197 refuses to submit to the chemical test of blood, breath, or urine reby
697 N.W.2d 681
that section ... the arresting peace officer ... shall verbally serve notice to the arrested person of the intention to immediately confiscate and revoke the operator's license of such person and that the revocation will be automatic thirty days after the date of arrest unless a petition for hearing is filed within ten days after the date of arrest.... The arresting peace officer shall within ten days forward to the director a sworn report stating (a) that the person was arrested ... and the reasons for such arrest, (b) that the person was requested to submit to the required test, and (c) that the person refused to submit to the required test.

Section 60-498.01(6)(c) provided that if an ALR revocation hearing was requested in such a situation, the issues under dispute were limited to:

(A) Did the peace officer have probable cause to believe the person was operating or in the actual physical control of a motor vehicle in violation of section 60-6,196 or a city or village ordinance enacted pursuant to such section; and
(B) Did the person refuse to submit to or fail to complete a chemical test after being requested to do so by the peace officer[.]

Although the hearing officer in this case addressed the validity of the traffic stop which preceded Chase's arrest and her refusal to submit to alcohol testing, neither party argues that the hearing officer was permitted or required to do so under § 60-498.01(6)(c). We conclude that he was not.

This statutory restriction of the scope of the ALR hearing also applies to the circumstance in which a motorist submits to a chemical test of blood or breath which discloses an alcohol concentration greater than the lawful limit. Id.; Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003). In that instance, however, the relevant statutes also provide for dismissal of the ALR proceeding or reinstatement of a license administratively revoked if there is no criminal prosecution for DUI or if such charges are dismissed or the defendant found not guilty after trial. § 60-498.02(4)(a). Thus, administrative revocation for DUI is contingent upon a successful prosecution of the motorist in a criminal DUI proceeding in which Fourth Amendment issues may be raised. Hass v. Neth, supra. We noted in Hass that because the Fourth Amendment exclusionary rule could prevent a conviction in a criminal case, it would also "indirectly [determine] the outcome of the ALR proceeding." 265 Neb. at 327, 657 N.W.2d at 20. Thus, we framed the issue presented in Hass as "not based on the 4th Amendment," but, rather, "whether 14th Amendment due process is violated by excluding 4th Amendment issues from the ALR proceeding and reserving those issues for the criminal DUI proceeding." 265 Neb. at 327, 657 N.W.2d at 20. We concluded that there was no due process violation.

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