Hass v. Neth, S-02-158.

Citation657 N.W.2d 11,265 Neb. 321
Decision Date21 February 2003
Docket NumberNo. S-02-158.,S-02-158.
PartiesLayne L. HASS, Appellant, v. Beverly NETH, Director, Nebraska Department of Motor Vehicles, Appellee.
CourtSupreme Court of Nebraska

Jeffrey H. Bush, Oakland, for appellant.

Don Stenberg, Attorney General, Hobert B. Rupe, and Ingolf D. Maurstad, Senior Certified Law Student, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

Layne L. Hass appeals from the judgment of the district court affirming a 1-year driver's license revocation imposed by the Department of Motor Vehicles (the Department). The primary question presented in this appeal is whether the state or federal Constitution required that Hass be allowed, at the administrative license revocation (ALR) hearing, to challenge the lawfulness of the traffic stop that led to his arrest.

BACKGROUND

Hass was stopped by the Nebraska State Patrol on the afternoon of July 22, 2001, based on erratic driving and speeding. Rex Kindall, a trooper with the State Patrol, testified that he observed Hass' vehicle swerve onto the shoulder of the county road on which it was westbound. Kindall followed the vehicle and observed it weaving onto the shoulder and clocked the vehicle by radar traveling 59 miles per hour in a 55-mile-per-hour zone. Kindall then turned on his emergency lights and stopped the vehicle.

Kindall testified that it took Hass a little while to respond to Kindall's emergency lights and that when Hass did stop, he had difficulty getting his driver's license out of his wallet. Kindall testified that he could smell an odor of alcohol at the window of the vehicle as he spoke with Hass. Kindall asked Hass to step out of the vehicle and sit in the patrol car. Kindall issued "paperwork" for driving on the shoulder and not having a current proof of insurance and, while speaking with Hass, could clearly smell the odor of alcohol from Hass' breath. Hass was not cited for speeding. Kindall asked Hass if he had been drinking, and Hass stated that he "`could not lie and had consumed several drinks earlier.'" Kindall administered field sobriety tests; Hass' performance on the tests was erratic.

At that point, Kindall administered a breath test, which Hass failed. Hass was placed under arrest and taken to the jail in Wahoo, Nebraska, where Hass submitted to an Intoxilyzer test. The test indicated.156 grams of alcohol per 210 liters of breath. Kindall completed and issued a "Notice/Sworn Report/Temporary License" (sworn report). Kindall's signature on the sworn report was notarized by the technician who administered the Intoxilyzer test to Hass.

On July 25, 2001, Hass filed a petition for administrative hearing with the Department. A hearing was held on August 2. The hearing officer took "[n]otice" of titles 177 and 247 of the Nebraska Administrative Code, but a copy of title 177 was not entered into the record. Hass did not object at the hearing to the hearing officer's taking notice of title 177. The hearing officer recommended revocation of Hass' driver's license, and the director of the Department ordered Hass' driver's license to be revoked for 1 year. Hass appealed to the district court, which affirmed the action of the Department.

ASSIGNMENTS OF ERROR

Hass assigns, reordered, that the district court erred in (1) failing to find that the ALR scheme as applied in the case at bar deprives Hass of due process, (2) failing to find that the ALR scheme as applied in the case at bar deprives Hass of equal protection, (3) finding that adequate foundation had been presented before the agency for receipt of evidence concerning the issue of whether Hass was under the influence of an intoxicating liquor because title 177 of the Nebraska Administrative Code was never made a part of the agency's records, and (4) finding that the notary public was not disqualified from administering an oath in this case.

Hass also assigns that the court erred in finding that there was probable cause to believe Hass was under the influence of alcohol to such an extent that he could not prudently operate a motor vehicle. However, this assignment of error is not argued in Hass' brief. A claimed prejudicial error must not only be assigned, but must also be discussed in the brief of the asserting party, and an appellate court will not consider assignments of error which are not discussed in the brief. Nauenburg v. Lewis, 265 Neb. 89, 655 N.W.2d 19 (2003).

STANDARD OF REVIEW

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. 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 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. In re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256 (2001),cert. denied sub nom. Armour v. K.D.G., 535 U.S. 1035, 122 S.Ct. 1792, 152 L.Ed.2d 651 (2002). 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. In re Application of Lincoln Electric System, 265 Neb. 70, 655 N.W.2d 363 (2003).

ANALYSIS
DUE PROCESS

We first turn to Hass' contention that the ALR scheme violates due process. Procedural due process limits the ability of the government to deprive people of interests which constitute "liberty" or "property" interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard. Marshall v. Wimes, 261 Neb. 846, 626 N.W.2d 229 (2001). We note that the due process requirements of Nebraska's Constitution are similar to those of the federal Constitution. Id.

Hass argues that the ALR scheme violates due process because it does not permit him to challenge the Fourth Amendment constitutionality of the traffic stop at the administrative hearing. If a chemical test has disclosed the presence of alcohol in a concentration specified in Neb.Rev. Stat. § 60-6,196 (Cum.Supp.2000), at the subsequent ALR hearing, the issues to be contested are limited to the following: (1) 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 § 60-6,196 or a city or village ordinance enacted pursuant to such section and (2) was the person operating or in the actual physical control of a motor vehicle while having an alcohol concentration in violation of § 60-6,196(1). See Neb.Rev.Stat. § 60-6,205(6)(c)(ii) (Reissue 1998). See, also, 247 Neb. Admin. Code, ch. 1, § 018 (2001).

However, while other issues such as the illegality of a stop are not contested at the ALR hearing, that does not mean that those issues are never raised. Pursuant to § 60-6,205(3), ALR proceedings are initiated when the driver is arrested pursuant to Neb.Rev.Stat. § 60-6,197 (Cum.Supp. 2000) and a chemical test discloses the presence of alcohol in a concentration specified in § 60-6,196.

A person whose operator's license is subject to revocation pursuant to subsection (3) of section 60-6,205 shall have all proceedings dismissed or his or her operator's license immediately reinstated without payment of the reinstatement fee upon receipt of suitable evidence by the director that (a) within the thirty-day period following the date of arrest the prosecuting attorney responsible for the matter declined to file a complaint alleging a violation of section 60-6,196, (b) the charge was dismissed, or (c) the defendant, at trial, was found not guilty of violating such section.

Neb.Rev.Stat. § 60-6,206(4) (Reissue 1998). Consequently, any Fourth Amendment issue presented by the initial arrest may be raised in a subsequent criminal proceeding for driving under the influence (DUI). If there is no criminal prosecution, the criminal charge is dismissed or the defendant is acquitted, then either the ALR proceeding is dismissed or the driver's license is reinstated.

We note that Hass' argument implies that if the scope of the ALR hearing permitted the issue to be considered, the Fourth Amendment exclusionary rule would apply in an ALR proceeding. The majority of jurisdictions considering the issue have concluded that the rule barring admission in criminal trials of evidence derived from an unlawful stop, arrest, search, or seizure does not generally apply in license suspension proceedings. See, generally, Annot., 23 A.L.R.5th 108 (1994). The Fourth Amendment issue is not the same in Nebraska, however, by virtue of the statutory framework set forth above. Administrative revocation is contingent upon a successful prosecution of the driver in a criminal DUI proceeding. If the exclusionary rule, available in the criminal proceeding, prevents a conviction, then the exclusionary rule has also indirectly determined the outcome of the ALR proceeding. Compare Brownsberger v. Dept. of Transp., MVD, 460 N.W.2d 449 (Iowa 1990). Cf. Young v. Neth, 263 Neb. 20, 24, 637 N.W.2d 884, 888 (2002) (ALR must be based on "valid arrest"). The issue presented here is not based on the 4th Amendment; rather, the issue presented is 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.

The first step in a due process analysis is to identify a property or liberty interest entitled to due process...

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