Mackey v. Director of Dept. of Motor Vehicles

• Decision Date: 20 November 1975
• Docket Number: No. 39885,39885
• Citation: 194 Neb. 707,235 N.W.2d 394
• Parties: Donald B. MACKEY, Appellant, v. DIRECTOR OF the DEPARTMENT OF MOTOR VEHICLES of the State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 394

235 N.W.2d 394

194 Neb. 707

Donald B. MACKEY, Appellant, v. DIRECTOR OF the DEPARTMENT OF MOTOR VEHICLES of the State of Nebraska, Appellee.

No. 39885.

Supreme Court of Nebraska.

Nov. 20, 1975.

Syllabus by the Court

1. On appeal from a revocation of a motor vehicle operator's license under the implied consent statute, this court reviews the finding of the trial court de novo.

2. On appeal to the District Court under section 60--420, R.R.S.1943, from an order of the Director of the Department of Motor Vehicles made under section 39--669.16, R.R.S.1943, revoking a motor vehicle operator's license, the burden of proof is on the licensee to establish by a preponderance of the evidence the ground for reversal.

3. Where blood, breath, or urine tests were available to a motorist under arrest for operating a motor vehicle while under the influence of alcoholic liquors, his inability to provide, within a reasonable time, a urine sample for a chemical test, which he elected to take, and his unwillingness to submit to either blood or breath tests offered to him in the alternative constitute a refusal to permit chemical testing as provided for in the implied consent statute.

4. Any person who is unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by section 39--669.08, R.R.S.1943, and the test may be given. § 39--669.10, R.R.S.1943.

Russell, Colfer, Lyons & Wood, William W. Lyons, McCook, for appellant.

Paul L. Douglas, Atty. Gen., Steven C. Smith, Sp. Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

CLINTON, Justice.

This is an appeal under the provisions of section 60--420, R.R.S.1943, from an order of the District Court for Red Willow County affirming an order of the Director of the Department of Motor Vehicles made under the provisions of section 39--669.16, R.R.S.1943, revoking the motor vehicle operator's license of the plaintiff-appellant Mackey for refusal to give a blood sample for chemical testing under the provisions of the implied consent law. § 39--669.08, R.R.S.1943.

In this appeal plaintiff asserts: (1) The evidence was insufficient to permit the trial court to find that the arresting officer had reasonable ground to believe the Mackey was driving a motor vehicle while under the influence of intoxicating liquor. (2) The evidence was insufficient to show that Mackey refused to give a body fluid specimen for testing. (3) The evidence shows that because of the effect of injuries, Mackey was mentally incapable of refusing to give a sample. (4) The evidence is insufficient to show that the arresting officer advised Mackey of the consequence of refusal as required by section 39--669.08(5), R.R.S.1943. We affirm.

We summarize the evidence before the trial court as follows: Mackey, at about midnight on December 2, 1973, was at a tavern in McCook, Nebraska. He left the tavern at about 1 o'clock a.m. to go home. After he entered his automobile he encountered an acquaintance, one Keene, who had come upon a friend, Jimenez, who was too intoxicated to drive. Keene proposed to drive Jimenez to his home 3 miles east of McCook. Keene asked Mackey if he would follow in his car and bring Keene back to town. Mackey agreed. Jimenez was delivered to his home uneventfully. As Mackey backed his auto onto the highway from the Jimenez driveway and turned to drive west, he and Keene observed a car coming from the west which they described as swerving on the highway. It was very foggy at the time. The oncoming car struck the Mackey automobile near the left rear fender and wheel. Another car came along and passed safely. A third vehicle then collided with the left front of the Mackey car. Mackey suffered head injuries. It is unclear from the evidence whether these injuries were incurred in the first or the second collision. The Nebraska State Patrol was summoned. When the officer arrived he observed Mackey being supported by Keene and the driver of the third vehicle. It was the import of the testimony of Mackey, Keene, and the driver of the third vehicle that this support was required because Mackey was dazed and groggy from his injuries and that they did not want to let Mackey rest on the wet, cold, snow-covered ground. The officer testified that when he arrived at the scene the Mackey car was astraddle the centerline of the highway. He made inquiry as to ownership of that car and was advised that Mackey was the owner. The officer did not at that time speak to Mackey, but observed his features with the aid of a flashlight. The officer testified that Mackey's eyes were bloodshot and that he detected the faint odor of beer in Mackey's breath, and he observed a small stream of blood coming down his face. An ambulance was called and Mackey was taken to a hospital where he received treatment, including the suturing of the head wound. The officer arrived at the hospital while treatment was being administered. He observed and heard Mackey's conversation with the treating physician. He described Mackey's conversation as incoherent and difficult to understand. Mackey testified that he remembered very little of what happened after the collision until after the request for a body fluid specimen. The officer testified that as soon as the doctor finished his treatment the officer advised Mackey that he was under arrest for driving while intoxicated. He then asked Mackey to give a urine sample. Mackey agreed, but was unable to urinate. After futile attempts for about 15 minutes, the officer then asked Mackey to give him a breath or blood sample. Mackey then told the officer that he did not think that he would do that. Another request was made and then the officer advised Mackey of the consequence of refusal by reading to him from an 'advisement' form. The officer testified he did not read the entire form. He left out paragraph one and part of paragraph five. The advisement form was identified, but never offered or received in evidence. The part of paragraph five which the officer testified was included in his warning to Mackey was read into the record as follows: "You may choose whether the test so required shall be a chemical test of your blood, breath or urine." The record does not show specifically what the balance of the warnings given were, but does affirmatively show that Miranda warnings were not given or commingled with advice on consequence of refusal. See Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906. The officer further testified that after Mackey declined to give a blood or breath specimen Mackey told the officer, "Go ahead and turn it over to the Motor Vehicle Department', or something to that affect (sic).' The officer also testified that after he again asked Mackey if he would rather give a blood or breath test he stated, "Just go ahead and turn it over to the Motor Vehicle Department. " Hospital personnel who may have observed Mackey at the time of his treatment and arrest were not called as witnesses.

On appeal from a revocation of a motor vehicle operator's license under the implied consent statute this court reviews the finding of the trial court de novo. Wiseman v. Sullivan, supra. It is important to our consideration of the issues that we first determine upon which party rests the burden of proof. In Lutjemeyer v. Dennis, 186 Neb. 46, 180 N.W.2d 679, we held that in an appeal under the provisions of section 60--420, R.R.S.1943, from an order of the Director of the Department of Motor Vehicles revoking a motor vehicle operator's license under the points statute, former section 39--7,129, R.R.S.1943, the burden is upon the plaintiff to prove the facts upon which he relies to...