Penry v. Neth
| Decision Date | 06 November 2012 |
| Docket Number | No. A–11–544.,A–11–544. |
| Citation | 823 N.W.2d 243,20 Neb.App. 276 |
| Parties | Sarah E. PENRY, appellee, v. Beverly NETH, Director of the Department of Motor Vehicles for the State of Nebraska, and the Department of Motor Vehicles for the State of Nebraska, appellants. |
| Court | Nebraska Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
[20 Neb.App. 276]1. Administrative Law: Judgments: Appeal and Error. 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.
[20 Neb.App. 277]2. Administrative Law: Judgments: 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.
3. Judgments: Appeal and Error. 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.
4. Administrative Law: Statutes: Appeal and Error. To the extent that the meaning and interpretation of statutes and regulations are involved, questions of law are presented, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.
5. Administrative Law. Agency regulations that are properly adopted and filed with the Secretary of State of Nebraska have the effect of statutory law.
6. Administrative Law: Appeal and Error. An appellate court accords deference to an agency's interpretation of its own regulations unless that interpretation is plainly erroneous or inconsistent.
7. Administrative Law. An administrative body has no power or authority other than that specifically conferred by statute or by construction necessary to accomplish the plain purpose of the Administrative Procedure Act.
8. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation. The authority of the director of the Department of Motor Vehicles to administratively revoke an operator's license is only that which is specifically conferred by the administrative license revocation statutes.
9. Administrative Law: Rules of Evidence. Telephonic hearings are permitted in proceedings under the Administrative Procedure Act in a formal rules of evidence hearing.
10. Statutes: Appeal and Error. Appellate courts give statutory language its plain and ordinary meaning and will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
11. Statutes. Statutes relating to the same subject matter will be construed so as to maintain a sensible and consistent scheme, giving effect to every provision.
12. Statutes. That which is implied in a statute is as much a part of it as that which is expressed.
13. Statutes: Appeal and Error. An appellate court will not read into a statute a meaning that is not there.
14. Statutes. A court must place on a statute a reasonable construction which best achieves the statute's purpose, rather than a construction which would defeat that purpose.
15. Statutes: Intent: Appeal and Error. In construing a statute, an appellate court looks to the statutory objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served.
16. Statutes: Presumptions: Legislature: Intent. In construing a statute, it is presumed that the Legislature intended a sensible rather than an absurd result.
17. Administrative Law: Statutes. Although construction of a statute by a department charged with enforcing it is not controlling, considerable weight will be given to such a construction.
[20 Neb.App. 278]18. Statutes: Legislature: Intent. For a court to inquire into a statute's legislative history, the statute in question must be open to construction. A statute is open to construction when its terms require interpretation or may reasonably be considered ambiguous.
19. Statutes. A statute is ambiguous when the language used cannot be adequately understood either from the plain meaning of the statute or when considered in pari materia with any related statutes.
20. Administrative Law: Drunk Driving: Licenses and Permits: Revocation. The purpose of administrative license revocation is to protect the public from the health and safety hazards of drunk driving by quickly getting offenders off the road. At the same time, the administrative license revocation statutes also further a purpose of deterring other Nebraskans from driving drunk.
21. Administrative Law: Motor Vehicles: Revocation. Because of the substantial procedural benefits conveyed upon the Department of Motor Vehicles in an administrative license revocation proceeding, the department is expected to strictly comply with the applicable rules and regulations.
22. Due Process: Notice. 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.
23. Due Process. Due process claims are generally subjected to a two-part analysis: (1) Is the asserted interest protected by the Due Process Clause and (2) if so, what process is due?
24. Motor Vehicles: Licenses and Permits: Revocation. Suspension of issued motor vehicle operators' licenses involves state action that adjudicates important property interests of the licensees.
25. Administrative Law: Motor Vehicles: Licenses and Permits: Due Process. Under procedural due process, before a state may deprive a motorist of his or her driver's license, that state must provide a forum for the determination of the question and a meaningful hearing appropriate to the nature of the case.
26. Administrative Law: Due Process: Notice: Evidence. In proceedings before an administrative agency or tribunal that adjudicates property interests of an accused person, procedural due process requires notice, identification of the accuser, factual basis for the accusation, reasonable time and opportunity to present evidence concerning the accusation, and a hearing before an impartial adjudicator.
27. Administrative Law: Due Process. In determining whether an administrative procedure comports with due process, a court must consider (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
28. Affidavits: Words and Phrases. An affidavit is a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.
[20 Neb.App. 279]29. Affidavits: Proof. An affidavit must bear on its face, by the certificate of the officer before whom it is taken, evidence that it was duly sworn to by the party making the same.
30. Drunk Driving: Public Health and Welfare. There is a substantial governmental interest in protecting public health and safety by removing drunken drivers from the highways.
31. Due Process. The concept of due process embodies the notion of fundamental fairness and defies precise definition.
32. Due Process. Due process is a flexible notion that must be decided on the facts presented in a particular case and calls for such procedural protections as the particular situation demands.
Jon Bruning, Attorney General, and Gregory J. Walklin for appellants.
Brad Roth, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., Lincoln, and, on brief, Timothy C. Phillips, P.C., L.L.O., for appellee.
In this appeal, brought pursuant to the Administrative Procedure Act, the director of the Nebraska Department of Motor Vehicles and the Nebraska Department of Motor Vehicles (collectively the Department) appeal from a decision of the district court for Lancaster County vacating and remanding the Department's revocation of Sarah E. Penry's operator's license. The district court's decision was based on the conclusion that the hearing officer did not have statutory authority to swear in witnesses over the telephone and that Penry's due process rights were violated by having the arresting officer appear and be sworn telephonically during her administrative license revocation (ALR) hearing. For the reasons set forth herein, we reverse the decision of the district court and remand the cause with directions to affirm the revocation of Penry's license.
On January 17, 2011, Officer Chris Fields observed a vehicle fail to signal a turn and cross the centerline. After initiating a stop, Fields identified the driver as Penry. Penry had bloodshot and watery eyes and an odor of alcohol about her person. Penry admitted to drinking and showed impairment on several field sobriety tests. She also failed a preliminary breath test. After her arrest, Penry completed a chemical test of her breath, which showed the presence of .122 of a gram of alcohol per 210 liters of breath. Thereafter, Fields completed a sworn report, which was notarized. Upon receiving the sworn report, the Department sent a notice of hearing to Penry and Fields which indicated the hearing would be “held by teleconference hearing procedures” and explained the telephonic hearing procedures for the motorist and the arresting officer.
Penry filed a petition with the Department, and an...
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...supra note 9; Murphy v. Terrell, 938 N.E.2d 823 (Ind.App.2010). See, also, Mathews v. Eldridge, supra note 1; Penry v. Neth, 20 Neb.App. 276, 823 N.W.2d 243 (2012).22 See, e.g., Casey v. O'Bannon, supra note 9.23 See, id. ; State, ex rel. Human Services Dept. v. Gomez, 99 N.M. 261, 657 P.2d......
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...or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation. Penry v. Neth, 20 Neb. App. 276, 823 N.W.2d 243 (2012). An affidavit must bear on its face, by the certificate of the officer before whom it is taken, evidence that it was d......