Prucha v. Department of Motor Vehicles

• Decision Date: 23 June 1961
• Docket Number: No. 34960,34960
• Citation: 88 A.L.R.2d 1055,172 Neb. 415,110 N.W.2d 75
• Parties: , 88 A.L.R.2d 1055 Laddie G. PRUCHA, Appellee, v. DEPARTMENT OF MOTOR VEHICLES, State of Nebraska and Alvin N. Scissors, Director, Department of Motor Vehicles of the State of Nebraska, Appellants.
• Court: Nebraska Supreme Court

Page 75

110 N.W.2d 75

172 Neb. 415, 88 A.L.R.2d 1055

Laddie G. PRUCHA, Appellee, v. DEPARTMENT OF MOTOR VEHICLES, State of Nebraska and Alvin N. Scissors, Director, Department of Motor Vehicles of the State of Nebraska, Appellants.

No. 34960.

Supreme Court of Nebraska.

June 23, 1961.

Syllabus by the Court.

1. A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.

2. In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof.

3. The general rule is that all persons are presumed to know and are bound to take notice of general public laws of the country or state where they reside as well as the legal effect of their acts.

4. By statute, any person who operates or has in his actual physical control a motor vehicle upon a public highway in this state shall be deemed to have given his consent to submit to a chemical test of his blood or urine for the purpose of determining the amount of alcoholic content in his body fluid.

5. By statute, the test shall be administered at the direction of a law enforcement officer whenever the person has been arrested for any offense involving operating a motor vehicle while under the influence of alcoholic liquor in violation of a statute or a city or village ordinance when the arresting officer has reasonable grounds to believe that before his arrest the person was driving while under the influence of alcoholic liquor.

6. By statute, the person so arrested or taken into custody may choose whether the test so required shall be a chemical test of his blood or urine.

7. By statute, if a person so arrested shall refuse to submit to the test provided for, it shall not be given, and the arresting officer shall make a sworn report of the Director of Motor Vehicles stating that he had reasonable grounds to believe that the person was operating or in actual physical control of a motor vehicle upon a public highway while he was under the influence of alcoholic liquor, and the facts upon which such belief was based, that such person was placed under arrest, and that he refused to submit to the test.

8. By statute, upon receipt of the officer's report of such refusal, the Director of Motor Vehicles shall notify such person of a date for hearing before him as to the reasonableness of the refusal to submit to the test. Notice of hearing shall be served by the director by mailing it to such person by certified or registered mail to the last-known address of such person at least 10 days before the hearing.

9. By statute, after granting the person an opportunity to be heard on such issue, if it is not shown to the Director of Motor Vehicles that such refusal to submit to such chemical test was reasonable, the director shall summarily revoke the motor vehicle operator's license of such person for a period of 1 year from the date of such order.

10. By statute, if the Director of Motor Vehicles revokes the operator's license, he shall reduce his order of revocation to writing, and shall notify the person in writing of the revocation.

11. By statute, any person who feels himself aggrieved because of such revocation may appeal therefrom to the district court for the county where the alleged events occurred for which he was arrested, in the manner prescribed in section 60-420, R.R.S.1943.

12. Where a person who refused to submit to a blood test at the time he was arrested and charged with driving while under the influence of alcoholic liquor was not convicted of such charge, subsequent revocation of his driver's license under another law was not precluded by such fact.

13. A license to operate an automobile upon the highways of the state is a privilege and not a property right, and the power given the Director of Motor Vehicles to suspend such operating privilege is an administrative and not a judicial function.

14. A license to operate an automobile is not property, but a mere privilege, the suspension of which does not deprive the licensee of his property without due process of law.

15. The essence of the 'implied consent law' is that by driving a motor vehicle on the public highway, the operator consents to the taking of a chemical test to determine the alcoholic content of his body fluid. By the act of driving his car, he has waived his constitutional privilege of self-incrimination, which has always been considered to be a privilege of a solely personal nature which may be waived.

16. The privilege against self-incrimination is limited to the giving of oral testimony. It does not extend to the use of the defendant's body as physical or real evidence.

Clarence A. H. Meyer, Atty. Gen., Cecil S. Brubaker, Asst. Atty. Gen., for appellants.

James E. Abboud, Jr., James, J. Fitzgerald, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

MESSMORE, Justice.

Laddie G. Prucha, plaintiff, perfected an appeal from an order of the Director of Motor Vehicles entered on June 13, 1960, revoking the motor vehicle operator's license of the plaintiff for failure to submit to a chemical test of his blood or urine under the provisions of sections 39-727.03 to 39-727.12, R.S.Supp., 1959. The plaintiff's petition on appeal was filed in the district court for Sarpy County on June 27, 1960, and a stay of the order of revocation was entered by that court on the same day. The defendants, Department of Motor Vehicles, State of Nebraska, and Alvin N. Scissors, Director of Motor Vehicles of the State of Nebraska, the latter hereinafter referred to as the director, filed a general demurrer to the plaintiff's petition on July 22, 1960, on the ground that the petition failed to allege facts sufficient to constitute a cause of action against such defendants. On September 2, 1960, the trial court overruled the defendants' demurrer. On October 14, 1960, the defendants filed notice of their election to stand on their demurrer. On November 4, 1960, default judgment was rendered against the defendants by the trial court, and an order was entered setting aside the order of the director revoking the motor vehicle operator's license of the plaintiff. The defendants appealed to this court.

The plaintiff's petition had attached to it the transcript from the Department of Motor Vehicles of Nebraska, including the Safety Patrol intoxication report dated May 2, 1960, which recited the plaintiff's name; the number of his driver's license; the number of his automobile license; his address; the date of his arrest, April 18, 1960, at 10:10 p. m.; the place of arrest; and the reasons for believing the person arrested was under the influence of intoxicating liquor while driving an automobile.

At the time of his arrest, the plaintiff was asked if he would submit to a fluid or blood test for the purpose of determining the alcoholic content in his system, and he refused to take the test.

On May 12, 1960, the director notified the plaintiff by mail of a hearing to be held before the director on June 6, 1960, at which time the plaintiff should show cause why his driver's license should not be revoked. By telegram directed to the plaintiff, this hearing was reset for June 10, 1960. Thereafter, on June 13, 1960, an order of the director was entered revoking the motor vehicle operator's license of the plaintiff for a period of 1 year from the date of June 10, 1960, for failure to show cause why such license should not be revoked as a result of his failure to submit to a test as provided for in sections 39-727.03 to 39-727.12, R.S.Supp., 1959. Notice of this order was sent to the plaintiff by letter the same day. The plaintiff perfected his appeal to the district court for Sarpy County from the order of the director revoking his driver's license under the provisions of section 39-727.11, R.S.Supp., 1959, and section 60-420, R.R.S.1943.

The plaintiff's petition, insofar as necessary to be considered here, is as follows: 'That the defendants' decision to revoke the plaintiff's license in accordance with the aforementioned statute was arbitrary and capricious and in violation of the State Constitution of the State of Nebraska for the following reasons, to-wit: 1. That plaintiff was not fully advised of the consequences of failure to comply with said statute. 2. That plaintiff complained of a heart condition which prevented him from taking any blood tests. 3. That he was not convicted of the offense of operating a motor vehicle under the influence in the original court. 4. This statute violates the Due Process Clause (Section 3), and the Giving Evidence Against Oneself Clause (Section 12), both from the Bill of Rights, Constitution, State of Nebraska, 1875.'

The plaintiff prayed for an order staying the revocation of his driver's license pending a final determination of the review by the district court, and for decree permanently setting aside and declaring null and void the order of June 10, 1960, revoking his driver's license.

'A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.' Gerard v. Steinbock, 169 Neb. 828, 101 N.W.2d 194, 195.

In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof. See Valentine Oil Co. v. Powers, 157 Neb. 71, 59 N.W.2d 150.

In the instant case the plaintiff attached the transcript heretofore mentioned to his petition and made it a part of his petition, therefore, it is also to be considered in passing on the demurrer.

The plaintiff raises the question that the defendants are limited to the assignment of error set forth in their brief, citing rule 8a 2(4) of this court, and decisions in accord with this rule....