Gausman v. Department of Motor Vehicles

• Decision Date: 07 October 1994
• Docket Number: No. S-93-392,S-93-392
• Citation: 522 N.W.2d 417,246 Neb. 677
• Parties: Russell J. GAUSMAN, Appellee, v. DEPARTMENT OF MOTOR VEHICLES, State of Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 417

522 N.W.2d 417

246 Neb. 677

Russell J. GAUSMAN, Appellee, v. DEPARTMENT OF MOTOR VEHICLES, State of Nebraska, Appellant.

No. S-93-392.

Supreme Court of Nebraska.

Oct. 7, 1994.

Syllabus by the Court

1. Administrative Law: Final Orders: Appeal and Error. Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency.

2. Administrative Law: Final Orders: Appeal and Error. In an appeal under the Administrative Procedure Act, the appeal shall be taken in the manner provided by law for appeals in civil cases, and the judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record.

3. Administrative Law: Final Orders: Appeal and Error. 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.

4. Administrative Law: Time. No rule or regulation of any agency shall be valid as against any person until 5 days after such rule or regulation has been filed with the Secretary of State.

Don Stenberg, Atty. Gen., and Lauren L. Hill, Lincoln, for appellant.

Douglas W. Marolf, Lincoln, for appellee.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and BOSLAUGH, J., Retired.

PER CURIAM.

The director of the Department of Motor Vehicles (department) revoked the driver's license of Russell J. Gausman for 90 days in accordance with the administrative license revocation statutes, Neb.Rev.Stat. §§ 39-669.07 through 39-669.18 (Reissue 1988 & Cum.Supp.1992). The Lancaster County District Court reversed the director's order and remanded the case to the department with directions that Gausman's license be reinstated immediately. The department appeals. In order to regulate the caseloads of the appellate courts of this state, we removed this case to the Supreme Court.

SCOPE OF REVIEW

Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency. See, Neb.Rev.Stat. § 84-917(5)(a) (Cum.Supp.1992); Lynch v. Nebraska Dept. of Corr. Servs., 245 Neb. 603, 514 N.W.2d 310 (1994). In an appeal under the Administrative Procedure Act, the appeal shall be taken in the manner provided by law for appeals in civil cases, and the judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record. Neb.Rev.Stat. § 84-918(3) (Cum.Supp.1992); Lee v. Nebraska State Racing Comm., 245 Neb. 564, 513 N.W.2d 874 (1994). 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.

FACTS

On January 29, 1993, Lincoln police officer Douglas Saitta was detailed to the scene of an accident near First Street and Cornhusker Highway in Lincoln. Upon arrival at the scene, Saitta was told by one of the parties to the accident that the other party, Russell J. Gausman, had left the scene of the accident. Saitta pursued Gausman and stopped him at approximately 4:30 p.m.

Saitta observed that Gausman had difficulty retrieving his registration form and had poor manual dexterity and slow, slurred speech. Saitta also noticed a moderate odor of alcohol coming from the vehicle. When Gausman was asked by Saitta to accompany him to the cruiser, Gausman staggered and used the side of his car to balance himself. Gausman was placed under arrest for suspicion of driving while under the influence and was transported to a detoxification center by Officer Gregory Simms. Gausman submitted to a chemical test of his breath, which indicated an alcohol concentration of .215 grams of alcohol per 210 liters of breath.

Pursuant to § 39-669.15, Gausman was given a "Notice/Sworn Report/Temporary License" which stated, inter alia, that there existed reasonable grounds to believe that Gausman had operated a motor vehicle while under the influence of alcoholic liquor and that Gausman was validly arrested pursuant to § 39-669.08. The notice stated that Gausman was advised of the consequences of submitting to and failing a breath test and that the breath test indicated an alcohol concentration of .215.

The notice informed Gausman that his driver's license would automatically be revoked effective 30 days from the date of the arrest and that if Gausman wished to contest the automatic revocation, he could request a hearing by filing a petition with the department within 10 days. Gausman was required to surrender his driver's license, and a 30-day temporary license was issued.

Gausman timely filed a petition requesting an administrative hearing, which was held on February 18, 1993. At the hearing, Gausman objected to the offer of all evidence on the grounds that the hearing was "not being conducted under any rules certified or promulgated by the Secretary of State, the Attorney General, or the Governor." The department's rules and regulations governing practice and procedure with regard to administrative license revocations which are contested had not been filed with the Secretary of State on the date of Gausman's arrest or the date of the revocation hearing, as required by the Administrative Procedure Act.

Following the hearing, Gausman's license was revoked. The director of the department determined that although § 39-669.15(7) required the adoption and promulgation of rules and regulations to cover the conduct of revocation hearings, the statute did not state the consequence of a failure to have the rules and regulations adopted at the time of the hearing. The director concluded that Gausman was afforded due process because he was provided an opportunity to present evidence and cross-examine the State's witnesses.

On appeal, the district court found that the rules and regulations required by § 39-669.15(7) had neither been approved by the Governor nor filed with the Secretary of State by either January 29, 1993, the date Gausman was arrested, or February 18, the date of the revocation hearing. The court determined that Gausman's right to due process was violated because the rules and regulations used to conduct the revocation hearing had not been approved and filed, as required by Neb.Rev.Stat. § 84-908 (Reissue 1987), at the time of his arrest. The court found that, in some instances, the rules governing the conduct of revocation hearings appeared to be more substantive than procedural in nature. The court reversed the director's order and remanded the case with directions that Gausman's license be reinstated immediately.

ASSIGNMENTS OF ERROR

The department assigns as error the district court's finding that due process was violated by the department's failure to obtain approval of the rules and regulations governing the conduct of revocation hearings and its failure to have the rules and regulations filed with the Secretary of State on either the date of Gausman's arrest or the date of his revocation hearing. The department also assigns as error the reversal of the revocation order and the reinstatement of Gausman's driver's license.

ANALYSIS

The issue in this case is whether the district court correctly determined that the department's rules and regulations should have been filed with the Secretary of State prior to the revocation hearing at issue. The provisions of § 39-669.15 under which Gausman's license was revoked became effective January 1, 1993. A person who is arrested for driving while under the influence of alcohol and who submits to a chemical test which discloses the presence of alcohol in any of the concentrations specified in § 39-669.07 shall be served verbal notice by the arresting officer, as an agent for the director of the department, of the intention to immediately impound and revoke the driver's license of that person. § 39-669.15(3). The arresting officer shall also serve notice to the arrested person that the revocation will be automatic 30 days after the date of the arrest unless a petition for hearing is filed within 10 days after the date of the arrest. Id.

The arresting officer must forward to the director a sworn report stating (1) that the person was validly arrested pursuant to § 39-669.08 and the reasons for the arrest; (2) that the person was requested to submit to the required test; (3) that the person was advised of the consequences if the test disclosed the presence of alcohol in a concentration specified in § 39-669.07, including that the driver's license would be immediately impounded and automatically revoked in 30 days; and (4) that the person submitted to a test, the type of test to which the person submitted, and that the test revealed the presence of alcohol in a concentration specified in § 39-669.07. § 39-669.15(3).

The arresting officer is required to explain the administrative license revocation procedure and the rights of the arrested person and to provide an addressed envelope...