Muir v. Nebraska Dept. of Motor Vehicles, S-99-672.

• Decision Date: 29 September 2000
• Docket Number: No. S-99-672.,S-99-672.
• Citation: 618 N.W.2d 444,260 Neb. 450
• Parties: Michael D. MUIR, appellee, v. NEBRASKA DEPARTMENT OF MOTOR VEHICLES, appellant.
• Court: Nebraska Supreme Court

618 N.W.2d 444

260 Neb. 450

Michael D. MUIR, appellee, v. NEBRASKA DEPARTMENT OF MOTOR VEHICLES, appellant.

No. S-99-672.

Supreme Court of Nebraska.

September 29, 2000.

Don Stenberg, Attorney General, and Melanie J. Whittamore-Mantzios for appellant.

Russel L. Jones, Lincoln, for appellee.

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

MILLER-LERMAN, J.

NATURE OF CASE

The Nebraska Department of Motor Vehicles (Department) appeals from the order of the district court for Dawson County which set aside the order of the Department director which had revoked Michael D. Muir's motor vehicle operator's license. For the reasons stated below, we conclude that the district court's order does not conform to the law, and we reverse the order of the district court and remand the cause for further proceedings.

STATEMENT OF FACTS

On January 30, 1999, in Dawson County, Nebraska, State Patrol Trooper Michael Dowling, through the use of radar, clocked Muir driving his motor vehicle in excess of the posted speed limit. Dowling also observed Muir swerving several times out of his lane of traffic, either over the center line or onto the shoulder of the highway. Dowling pulled over Muir's vehicle and observed that Muir smelled of alcohol, spoke with slurred speech, and had bloodshot and watery eyes.

Dowling asked Muir to perform several field sobriety tests, all of which Muir failed. After Dowling gave Muir a preliminary breath test, he arrested Muir for driving under the influence of alcohol and transported Muir to the Dawson County jail. At the jail, Muir was administered a chemical test of his breath, which test indicated that Muir had a breath alcohol content of .222 grams of alcohol per 210 liters of breath.

As a result of his arrest, Muir's driver's license was subject to administrative revocation pursuant to the statutes pertaining to the rules of the road, specifically Neb. Rev.Stat. § 60-6,205 (Reissue 1998); the Administrative Procedure Act (APA), Neb.Rev.Stat. §§ 84-901 to 84-920 (Reissue 1994 & Cum.Supp.1998); and 247 Neb. Admin. Code, ch. 1, §§ 001 to 027 (1998). Muir contested the revocation and requested a formal rules of evidence hearing pursuant to § 84-914(1), which request the Department granted. Section 60-6,205(6)(a) provides that driver's license revocation hearings "shall be conducted in the county in which the arrest occurred or in any other county agreed to by the parties."

The hearing was held telephonically on March 15, 1999. Section 84-913.03 provides for telephonic hearings. The record indicates that Muir, Muir's counsel, counsel for the Department, Dowling, the hearing officer, and a court reporter were all participants in the telephonic hearing. The evidence in the record does not indicate, however, the location of any of these participants during the telephonic hearing.

At the start of the hearing, Muir, through his counsel, objected to the Department's conducting the hearing telephonically. Specifically, Muir objected to the hearing "being held over the telephone." Muir made no objection to the county in which the telephonic hearing was conducted or, more specifically, to the venue of the hearing as prescribed in § 60-6,205(6)(a). The hearing officer, relying upon this court's decision in Kimball v. Nebraska Dept. of Motor Vehicles, 255 Neb. 430, 586 N.W.2d 439 (1998), overruled Muir's objection to the telephonic method of the hearing, and the hearing continued. In Kimball, we held that telephonic hearings pertaining to driver's license revocations are permitted in proceedings under the APA when a formal "rules of evidence" hearing is requested. Sixteen exhibits were received into evidence, including Dowling's sworn report prepared following his arrest of Muir. Dowling also testified at the hearing. At the conclusion of the hearing, the hearing officer took the matter under advisement.

On March 19, 1999, the hearing officer issued proposed findings of fact, proposed conclusions of law, and a recommended order of revocation, all of which were adopted as the official and final order by the director of the Department on March 22, 1999. As a result of the director's order, Muir's driver's license was revoked for a period of 90 days.

On March 29, 1999, Muir filed his petition for review in the district court for Dawson County, appealing the director's order. In his petition, Muir assigned several errors, including the claim that the telephonic hearing was improper, that there was no reasonable suspicion to stop his vehicle, and that his arrest was made without probable cause. Muir attached to his petition a copy of a "Judgment on Appeal" entered in an unrelated case by the district court for Cherry County (Cherry County order), in which the district court for Cherry County reversed a license revocation order as to another driver, which order had been entered by the Department following a telephonic hearing. The district court in the Cherry County order determined that because the record of the telephonic hearing indicated that the hearing officer was situated in Lincoln, Lancaster County, Nebraska, and the arrest had occurred in Cherry County, the telephonic hearing in that case violated § 60-6,205(6)(a), which provides that license revocation hearings "shall be conducted in the county in which the arrest occurred or in any other county agreed to by the parties."

Muir's petition came on for hearing before the district court for Dawson County on May 10, 1999. Muir's counsel and the Department, represented by the Dawson County Attorney's office, appeared at the hearing. The district court received into evidence the bill of exceptions from the telephonic hearing before the Department.

On May 18, 1999, the district court filed its journal entry in which it reversed the Department's order which had revoked Muir's driver's license. In its journal entry, the district court made no factual findings regarding the location of the participants to the March 15, 1999, telephonic hearing. Nevertheless, the district court determined that the telephonic hearing was not held in Dawson County, where Muir's arrest occurred, and the revocation order was therefore improper under § 60-6,205(6)(a). The district court also awarded the Dawson County Attorney's office a $100 attorney fee, to be paid from the budget of the Nebraska Attorney General.

The Department appeals.

ASSIGNMENTS OF ERROR

On appeal, the Department has assigned three errors which combine to form two. The Department claims that the district court erred (1) in vacating the director's order which had revoked Muir's driver's license and driving privileges on the basis that the telephonic hearing violated § 60-6,205(6)(a) and (2) in ordering that the attorney fee awarded to the Dawson County Attorney's office be paid from the budget of the Attorney General.

STANDARDS OF REVIEW

Decisions of the director of the Department of Motor Vehicles, pursuant to Nebraska's administrative revocation statutes, are appealed under the APA. Neb.Rev.Stat. § 60-6,208 (Reissue 1998). See, also, Schindler v. Department of Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999); Kimball v. Nebraska Dept. of Motor Vehicles, 255 Neb. 430, 586 N.W.2d 439 (1998). A final order rendered by a district court in a judicial review pursuant to the APA may be reversed, vacated, or modified by an appellate court for errors appearing on the record. § 84-918; Schindler v. Department of Motor Vehicles, supra.

When reviewing an order of a district court under the APA 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. Father Flanagan's Boys' Home v. Agnew, 256 Neb. 394, 590 N.W.2d 688 (1999). An appellate court, in reviewing a district court's judgment for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings. 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. Id.; Kimball v. Nebraska Dept. of Motor Vehicles, supra.

ANALYSIS

Venue Under § 60-6,205(6)(a).

The State advances several alternative arguments as to why the decision of the district court should be reversed. Muir relies primarily on the Cherry County order in an unrelated case in support of his position that the district court's order should be affirmed.

Administrative license revocation hearings are conducted pursuant to §§ 60-6,205 through 60-6,208; §§ 84-913 through 84-920; and 247 Neb. Admin. Code, ch. 1, §§ 001 to 027. The parties agree, as do we, that a telephonic hearing under the APA, § 84-913.03, pertaining to driver's license revocation, is subject to the terms of § 60-6,205(6)(a), which provides that license revocation hearings "shall be conducted in the county in which the arrest occurred or in any other county agreed to by the parties."

In Kimball v. Nebraska Dept. of Motor Vehicles, 255 Neb. 430, 586 N.W.2d 439 (1998), a case involving an administrative driver's license revocation proceeding, this court held that telephonic hearings under § 84-913.03 were permitted in proceedings under the APA when a formal "rules of evidence" hearing under § 84-914(1) is requested. Kimball v. Nebraska Dept. of Motor Vehicles, supra.

Under § 60-6,205(6)(a), an administrative driver's license revocation hearing "shall be conducted in the county in which the arrest occurred or in any other county agreed to by the parties." Reading §§ 60-6,205(6)(a), 84-913.03, and 84-914(1) in pari materia, we conclude that the terms of § 60-6,205(6)(a) apply to telephonic hearings concerning the administrative revocation of drivers' licenses. See Sheldon-Zimbelman v. Bryan Memorial Hosp., 258 Neb. 568, 604 N.W.2d 396 (2000) (statutes...