Fulmer v. Jensen, s. 84-490

• Decision Date: 17 January 1986
• Docket Number: Nos. 84-490,84-544,s. 84-490
• Parties: Rocke D. FULMER, Appellant, v. Holly JENSEN, Director of the Department of Motor Vehicles, State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 736

379 N.W.2d 736

221 Neb. 582

Rocke D. FULMER, Appellant, v. Holly JENSEN, Director of the Department of Motor Vehicles, State of Nebraska, Appellee.

Nos. 84-490, 84-544.

Supreme Court of Nebraska.

Jan. 17, 1986.

Syllabus by the Court

1. Administrative Law: Statutes. The authority to delegate discretionary and quasi-judicial powers to agency subordinates is implied where the powers bestowed upon an agency head are impossible of personal execution.

2. Constitutional Law: Statutes. The constitutional requirement of reasonable certainty in statutory language is satisfied by the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.

3. Implied Consent Law: Blood, Breath, and Urine Tests: Words and Phrases. The term "reasonable," as applied to refusals to submit to a chemical test under the implied consent law, is an ordinary term which finds adequate interpretation in common usage and understanding.

4. Constitutional Law: Legislature: Statutes. While the Legislature cannot delegate its lawmaking powers, it can make laws which become operative on the happening of a certain contingency or on an ascertainment of a fact upon which the law intends to make its own action depend.

5. Implied Consent Law: Miranda Rights: Blood, Breath, and Urine Tests. There is no requirement that Miranda warnings be given prior to a request to submit to a chemical analysis of blood, breath, or urine under the Nebraska implied consent law.

6. Implied Consent Law: Constitutional Law: Evidence: Self-Incrimination. Evidence obtained in the implied consent context is not testimonial or communicative in nature and does not fall within the privilege against self-incrimination.

7. Implied Consent Law: Blood, Breath, and Urine Tests: Right to Counsel. Under the implied consent law a driver is not entitled to consult with an attorney before submitting to a chemical test, nor is a delay in the test required due to a driver's request to consult with an attorney.

8. Criminal Law: Investigative Stops: Probable Cause. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.

9. Implied Consent Law: Blood, Breath, and Urine Tests: Arrests: Probable Cause. Reasonable grounds for arrest and arrest are conditions precedent to a valid request to submit to a chemical test.

John S. Mingus of Mingus & Mingus, Ravenna, for appellant

A. Eugene Crump, Deputy Atty. Gen., and Jill Gradwohl, Lincoln, for appellee.

KRIVOSHA, C.J., BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

PER CURIAM.

The plaintiff, Rocke D. Fulmer, has appealed from the order of the district court affirming the order of the director of the Department of Motor Vehicles suspending his motor vehicle operator's license under the implied consent law.

The record shows that on September 1, 1983, Fulmer was approached by Gloria Martin, A Kearney, Nebraska, police officer who had just received a radio dispatch reporting a theft at the Holiday Inn. The dispatch identified a white El Camino-type vehicle as having been involved in the theft and that it had last been seen traveling northbound on Central Avenue. Shortly after receiving the radio transmission, Officer Martin observed the Fulmer vehicle, which matched the description and license plate number given in the radio dispatch. The Fulmer car was then located approximately 50 feet from the public roadway on private property with its headlights on.

As Officer Martin approached, she observed Fulmer and a woman in the vehicle. Fulmer, after producing his license and registration, was asked to return to the Holiday Inn to clear up the theft matter. Officer Martin testified that at this time she was not aware that Fulmer might be under the influence of alcohol. She attributed his dullness and silence to the pending police investigation.

Fulmer agreed to return to the motel after being advised that his vehicle was suspected to have been involved in the theft. As Officer Martin followed Fulmer, she observed that he was driving very slowly and appeared not to know where he was going. She stopped him after he had passed both access roads to the motel. Upon approaching the vehicle, Officer Martin shined her flashlight in the window and observed a six-pack of beer on the floor. She also observed Fulmer's eyes to be bloodshot and watery, and noticed a strong odor of alcohol on his breath. When asked what the problem was, Fulmer responded that he was not from the Kearney area, although his driver's license indicated that he was. He was then asked to step from his vehicle, which he did with difficulty. After performing poorly on three field sobriety tests, Fulmer was arrested for driving while intoxicated and transported to a detention center.

At the center Fulmer was read an implied consent advisement postarrest form. When he refused to submit to a test after signing the form, he was subsequently cited for the refusal.

A show cause hearing was held on October 20, 1983, before a hearing officer for the Department of Motor Vehicles. An order revoking Fulmer's motor vehicle operator's license for unreasonably refusing to consent to a body fluid test was entered on October 27, 1983.

On appeal the district court rejected Fulmer's claims that Neb.Rev.Stat. § 39-669.16 (Reissue 1984) is unconstitutional in placing the burden upon the appellant to prove that a refusal was reasonable and because there are no established guidelines as to what constitutes a reasonable refusal. The court then sustained the State's motion to dismiss the appeal, holding that Fulmer had not sustained his burden of showing that his refusal was reasonable. Fulmer's motion for new trial was overruled.

Fulmer's first claim on appeal is that the district court erred in refusing to hold that the appellee, Holly Jensen, had illegally delegated her quasi-judicial functions as the director of the Department of Motor Vehicles by allowing the deputy director to determine whether Fulmer's license should be revoked pursuant to § 39-669.16. The appellant claims that Jensen may not delegate the power vested in her by § 39-669.16, because the power is quasi-judicial in nature and delegated solely to her.

The record shows that the show cause implied consent hearing was had before a hearing officer as provided by statute. The hearing officer then summarized the testimony from a tape recording and delivered a synopsis to the deputy director's secretary. The appellee, Jensen, testified that the decision whether to revoke Fulmer's license was delegated to the deputy director. However, the October 27, 1983, order revoking Fulmer's license, and the certificate of service attached thereto, both bear Director Jensen's signature.

Neb.Rev.Stat. § 60-1503 (Reissue 1984) specifically provides, "The Director of Motor Vehicles shall have authority to employ such personnel, including legal, and technical advisors as may be necessary to carry out the duties of his office." Director Jensen testified that the Department of Motor Vehicles reviews up to 1,600 implied consent cases a year, making it impossible for her to personally review every case.

The authority to delegate discretionary and quasi-judicial powers to agency subordinates is implied where the powers bestowed upon an agency head "are impossible of personal execution." 2 Am.Jur.2d Administrative Law § 223 at 53 (1962). See, also, Brown Group, Inc. v. Admin. Hearing Com'n, 649 S.W.2d 874 (Mo.1983); Kiernan v. Bronstein, 73 Misc.2d 629, 342 N.Y.S.2d 977 (1973).

As stated in 2 Am.Jur.2d, supra § 224 at 54-55: "[T]he law does not preclude practicable administrative procedure in obtaining the aid of assistants in the department, apparently to any extent so long as the agency does not abdicate its power and responsibility and preserves for itself the right to make the final decision." The authority of the director to delegate her implied consent revocation duties is fairly implied by § 60-1503. We conclude that the appellee director did not unlawfully delegate her responsibilities under § 39-669.16.

Fulmer next maintains that § 39-669.16 is unconstitutionally vague and ambiguous because a reasonable refusal is not adequately defined in the statute or in department regulations.

The constitutional requirement of reasonable certainty in statutory language "is satisfied by the use of ordinary terms [to express ideas] which find adequate interpretation in common usage and understanding." Roth v. School Dist. of Scottsbluff, 213 Neb. 545, 548, 330 N.W.2d 488, 491 (1983). See, also, Weiner v. State ex rel. Real Estate Comm., 217 Neb. 372, 348 N.W.2d 879 (1984).

In Gleason v. Gleason, 218 Neb. 629, 633, 357 N.W.2d 465, 468 (1984), we recognized the difficulty inherent in determining "reasonable" alimony, due to the fact that " [t]he standard of reasonableness by its very nature defies clear and specific quantification inasmuch as the determination of reasonableness is directly tied to the virtually unique circumstances of each case." The same can be said of the reasonableness of refusal determination. This court has previously noted that "an attempt to give a specific meaning to the word 'reasonable' is 'trying to count what is not number, and measure what is not space.' " Altschuler v. Coburn, 38 Neb. 881, 890, 57 N.W. 836, 838 (1894).

The term "reasonable," as applied to refusals to submit to a chemical test under the implied consent law, is an ordinary term which finds adequate interpretation in common usage and understanding. When the reasonableness standard is applied to specific circumstances, it provides an adequate guide to persons of ordinary intelligence.

Fulmer claims further that § 39-669.16 unconstitutionally delegates legislative power to the executive branch because the statute fails to define the term "reasonable." While the...