Smith v. State, Dept. of Motor Vehicles, S-93-938
| Decision Date | 07 July 1995 |
| Docket Number | No. S-93-938,S-93-938 |
| Citation | 535 N.W.2d 694,248 Neb. 360 |
| Parties | Dennis C. SMITH, Appellee, v. STATE of Nebraska, DEPARTMENT OF MOTOR VEHICLES, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Drunk Driving: Police Officers and Sheriffs: Blood, Breath, and Urine Tests. Any peace officer who has reasonable grounds to believe that an arrestee was operating a motor vehicle while under the influence of alcohol can require the arrestee to submit to a chemical test of his breath, blood, or urine.
2. Blood, Breath, and Urine Tests. Any person who is requested to submit to a chemical test must be advised of the consequences of refusing to submit to the test and the consequences of submitting to the test and failing it.
3. Administrative Law: Appeal and Error. The judgment rendered or final order made by the district court in an Administrative Procedure Act appeal may be reversed, vacated, or modified by the Supreme Court or the Court of Appeals for errors appearing on the record.
4. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below.
5. Implied Consent: Blood, Breath, and Urine Tests. Any person who operates a motor vehicle in Nebraska is deemed to have given his or her consent to submit to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the concentration of alcohol in his or her body.
6. Police Officers and Sheriffs: Blood, Breath, and Urine Tests. The purpose of requiring arresting officers to advise drivers of the consequences of a refusal to take a breath test is to ensure that the driver knows and is in a position to make a rational and voluntary decision as to whether he or she will comply with law.
7. Statutes: Legislature: Intent: Appeal and Error. In ascertaining the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as determined from the language of the statute considered in its plain, ordinary, and popular sense.
8. Statutes: Presumptions: Words and Phrases. When the word "shall" appears in a statute, mandatory or ministerial action is presumed.
Don Stenberg, Atty. Gen., and Jay C. Hinsley, Lincoln, for appellant.
David Kimble, Seward, for appellee.
On May 16, 1993, the appellee, Dennis C. Smith, was arrested by an officer of the Seward Police Department for driving while under the influence of alcohol. Prior to administering the chemical test which confirmed the concentration of alcohol in Smith's breath, the arresting officer read Smith an administrative license revocation advisement (the advisory form), which is required by state statute. The advisory form attempted to detail the consequences of refusing to submit to the breath test and the consequences of submitting to the test and failing it. Smith consented to the breath test, and the test confirmed an alcohol concentration in excess of the legal limit. Following an administrative hearing, Smith's motor vehicle operator's license was revoked for a period of 90 days by the director of the Department of
Motor Vehicles. The sole issue in [248 Neb. 362] this case is whether the arresting officer, by reading the advisory form, gave Smith adequate notice of the consequences of failing a breath test as required by Neb.Rev.Stat. § 60-6,197(10) (Reissue 1993). The advisory form failed to give Smith adequate notice of the consequences of failing a chemical test. We therefore affirm the order of the district court for Seward County which vacated the order of the director of the Department of Motor Vehicles revoking Smith's operator's license.
As of January 1, 1994, the Nebraska Rules of the Road, chapter 39 of the Nebraska Revised Statutes, were renumbered. They are now codified at Neb.Rev.Stat. § 60-601 et seq. (Reissue 1993 & Cum.Supp.1994). For convenience, we use the new numbering scheme.
Pursuant to § 60-6,197, any peace officer who has reasonable grounds to believe that an arrestee was operating a motor vehicle while under the influence of alcohol can require the arrestee to submit to a chemical test of his breath, blood, or urine. Section 60-6,197(10) mandates that any person who is requested to submit to a chemical test be advised of the consequences of refusing to submit to the test and the consequences of submitting to the test and failing it.
Since Smith failed the breath test, his motor vehicle operator's license was impounded and he was issued a temporary license. He was informed that unless he filed a petition with the Department of Motor Vehicles (Department) for review, his license would be automatically revoked 30 days from the date of his arrest.
On May 25, 1993, Smith requested an administrative hearing before the Department to contest the revocation. On May 26, the Department notified Smith that his administrative hearing would be conducted on June 3. At the hearing, the primary issue was whether the advisory form adequately informed Smith of the consequences of taking and failing a chemical test. By an order dated June 9, the director of the Department revoked Smith's operating license and privilege to operate a motor vehicle for 90 days.
On June 14, 1993, in accordance with § 60-6,208 and the Administrative Procedure Act, Smith filed a petition in the district court for Seward County seeking review of the director's order. On August 23, the appeal was heard by the district court. By its order of September 23, the district court determined that Smith was given inadequate notice of all the consequences of submitting to a test of one's breath if the chemical test discloses the presence of alcohol in a concentration in excess of the legal limit. The district court vacated and set aside the Department's order revoking Smith's license. The Department appealed the district court's order to the Nebraska Court of Appeals. By order of this court, the appeal was removed to our docket.
The Department asserts that the district court erred in finding that the arresting officer failed to give Smith adequate notice of the consequences of failing or refusing a chemical test of his blood, breath, or urine and erred by reversing the Department's order of revocation and ordering the reinstatement of Smith's license.
The judgment rendered or final order made by the district court in an Administrative Procedure Act appeal may be reversed, vacated, or modified by the Supreme Court or the Court of Appeals for errors appearing on the record. Wagoner v. Central Platte Nat. Resources Dist., 247 Neb. 233, 526 N.W.2d 422 (1995); Sunrise Country Manor v. Neb. Dept. of Soc. Servs., 246 Neb. 726, 523 N.W.2d 499 (1994); Abbott v. Department of Motor Vehicles, 246 Neb. 685, 522 N.W.2d 421 (1994).
Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below. Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994).
Any person who operates a motor vehicle in Nebraska is deemed to have given his or her consent to submit to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the concentration of alcohol in his or her body. Section 60-6,197(1). A person who refuses to submit to the test is subject to an automatic administrative license revocation. Section 60-6,197.
Prior to 1993, Nebraska law provided for administrative license revocation only when a person refused to submit to a chemical test and when such refusal was not shown to be reasonable. Neb.Rev.Stat. § 39-669.16 (Reissue 1988). After January 1, 1993, a person who agreed to submit to the chemical test and failed it also became subject to automatic administrative license revocation. Section 60-6,205(3). Today, in both circumstances, the arresting officer immediately impounds and revokes the operator's license and issues the driver a temporary license. Section 60-6,205(2), (3), and (4). The temporary license expires and the revocation is automatically effective 30 days after the arrest unless successfully appealed. § 60-6,205(2) and (3).
Prior to requiring an arrestee to submit to a chemical test or refuse to submit, the arresting officer shall advise the arrestee of the consequences of both choices. Section 60-6,197(10). Formerly, the statute only required that the arresting officer advise the arrestee of the consequences of refusing to submit to a chemical test. Neb.Rev.Stat. § 39-669.08(5) (Reissue 1988). That statute was amended, and effective January 1, 1993, the arrestee "shall be advised of ... the consequences if he or she submits to such test and the test discloses the presence of a concentration of alcohol in violation of subsection (1) of section [60-6,196." 1992 Neb.Laws, L.B. 291, § 5.
In interpreting the former statute, we stated that the purpose of requiring arresting officers to advise drivers of the consequences of a refusal to take a breath test is to ensure that the driver knows and is in a position to make a rational and voluntary decision as to whether he or she will comply with law. State v. Deets, 234 Neb. 307, 450 N.W.2d 696 (1990). If it can be shown that the licensee was properly advised, the only understanding required by the licensee is an understanding that he or she has been asked to take a test. See, id.; State v. Beerbohm, 229 Neb. 439, 427 N.W.2d 75 (1988); Pollard v. Jensen, 222 Neb. 521, 384 N.W.2d 640 (1986); Martinez v. Peterson, 212 Neb. 168, 322 N.W.2d 386 (1982).
As amended, the statute now requires a warning about the consequences of submission to the test. The Legislature also...
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