State v. Albarenga

• Citation: 313 Neb. 72,982 N.W.2d 799
• Decision Date: 23 December 2022
• Docket Number: S-21-213.
• Parties: STATE of Nebraska, appellee, v. Seidy N. ALBARENGA, appellant.
• Court: Nebraska Supreme Court

313 Neb. 72

982 N.W.2d 799

STATE of Nebraska, appellee,

v.Seidy N. ALBARENGA, appellant.

No. S-21-213.

Supreme Court of Nebraska.

Filed December 23, 2022

Joe Nigro, Lancaster County Public Defender, and Nathan Sohriakoff, for appellant.

Christine A. Loseke, Assistant Lincoln City Prosecutor, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

We granted further review of a Nebraska Court of Appeals’ decision affirming the defendant's convictions for violating a municipal traffic signal law and for driving under the influence (DUI). The issues presented are (1) whether Neb. Rev. Stat. § 60-6,123(3)(c) (Reissue 2021) preempts a city ordinance providing that vehicular traffic facing a steady red arrow at the intersection of two one-way streets is prohibited from turning left at any time while the arrow remains red and (2) whether the evidence derived from the stop should have been excluded because the officer could not reasonably rely on a preempted traffic ordinance in making the stop. We reverse the traffic ordinance conviction but affirm the DUI conviction.

BACKGROUND

Following a stipulated trial, Seidy N. Albarenga was found guilty in county court of DUI, first offense, and of violating an automatic traffic signal, both in violation of municipal ordinances of the city of Lincoln, Nebraska. She was sentenced accordingly.

TRAFFIC STOP

Albarenga's convictions stem from a traffic stop that took place in Lincoln on June 28, 2019. A law enforcement officer observed Albarenga on 17th Street, facing north, in the westernmost lane at the intersection with Q Street. Both 17th and Q Streets are one way, with Q Street running west.

The westernmost lane of 17th Street faced a traffic signal that displayed green, yellow, and red arrow lights. The only sign accompanying the signal was one directing traffic to turn left only. A similar arrow signal in at least one other intersection in Lincoln is accompanied by a separate sign indicating there is no turn on a red arrow.

Albarenga came to a complete stop at the intersection. The traffic control device displayed a red arrow light. After stopping, and while the red arrow was still lit, Albarenga turned left onto Q Street.

The law enforcement officer initiated a traffic stop on the grounds that Albarenga "violated the left turn arrow." During the stop, the officer observed signs that Albarenga was impaired. A chemical test showed a reading of 0.142 of a gram of alcohol per 210 liters of breath.

CHARGES

Albarenga was charged with two counts in county court. Count 1 charged her with DUI, first offense, in violation of Lincoln Mun. Code § 10.16.030 (2017). Count 2 charged her with violating an automatic traffic signal, in violation of Lincoln Mun. Code § 10.12.030 (2017). Section 10.12.030 prohibits turning at a steady red arrow indication and requires the driver to remain stopped until a green light is displayed. It states:

Whenever traffic is controlled by an automatic traffic signal or other official traffic control device exhibiting different colored lights or colored, lighted arrows successively, one at a time or in combination, only the colors green, red, and yellow shall be used, except for pedestrian signals, and said lights shall indicate and apply to drivers of vehicles and pedestrians as follows:

....

RED ARROW: Vehicular traffic facing a lighted steady red arrow shall stop before entering the crosswalk on the near side of the intersection and remain stopped until a green light is displayed, except as otherwise permitted in this title.

PRETRIAL MOTIONS

Albarenga moved to quash count 2 and moved to suppress the evidence derived from the stop, which the State intended to offer to prove the charges in count 1. Both motions revolved around Albarenga's argument that what § 10.12.030 directs a steady red arrow light shall signal to drivers in Lincoln is in direct conflict with what § 60-6,123(3)(c) directs a steady red arrow light shall signal to drivers throughout the State of Nebraska. She argued that § 60-6,123 requires any "steady red indication," which specifically includes "different colored lights or colored lighted arrows," "shall indicate" to drivers at an intersection of two one-way streets that they "may cautiously enter the intersection to make a left turn after stopping." Thus, Albarenga argued that § 10.12.030 prohibits what § 60-6,123 expressly permits and that § 10.12.030 is thereby preempted by state law.

Section 60-6,123 is part of the Nebraska Rules of the Road (Rules of the Road).¹ Describing traffic signals, § 60-6,123 provides in relevant part:

Whenever traffic is controlled by traffic control signals exhibiting different colored lights or colored lighted arrows, successively one at a time or in combination, only the colors green, red, and yellow shall be used, except for special pedestrian signals carrying a word legend, number, or symbol, and such lights shall indicate and apply to drivers of vehicles and pedestrians as follows:

(1)(a) Vehicular traffic facing a circular green indication may proceed straight through or turn right or left unless a sign at such place prohibits either such turn, but vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such indication is exhibited;

(b) Vehicular traffic facing a green arrow indication, shown alone or in combination with another indication, may cautiously enter the intersection only to make the movement indicated by such arrow or such other movement as is permitted by other indications shown at the same time, and such vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection; and

(c) Unless otherwise directed by a pedestrian-control signal, pedestrians facing any green indication, except when the sole green indication is a turn arrow, may proceed across the roadway within any marked or unmarked crosswalk;

(2)(a) Vehicular traffic facing a steady yellow indication is thereby warned that the related green movement is being terminated or that a red indication will be exhibited immediately thereafter when vehicular traffic shall not enter the intersection, and upon display of a steady yellow indication, vehicular traffic shall stop before entering the nearest crosswalk at the intersection, but if such stop cannot be made in safety, a vehicle may be driven cautiously through the intersection; and

(b) Pedestrians facing a steady yellow indication, unless otherwise directed by a pedestrian-control signal, are thereby advised that there is insufficient time to cross the roadway before a red indication is shown and no pedestrian shall then start to cross the roadway;

(3)(a) Vehicular traffic facing a steady red indication alone shall stop at a clearly marked stop line or shall stop, if there is no such line, before entering the crosswalk on the near side of the intersection or, if there is no crosswalk, before entering the intersection. The traffic shall remain standing until an indication to proceed is shown except as provided in subdivisions (3)(b) and (3)(c) of this section;

(b) Except where a traffic control device is in place prohibiting a turn, vehicular traffic facing a steady red indication may cautiously enter the intersection to make a right turn after stopping as required by subdivision (3)(a) of this section. Such vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection;

(c) Except where a traffic control device is in place prohibiting a turn, vehicular traffic facing a steady red indication at the intersection of two one-way streets may cautiously enter the intersection to make a left turn after stopping as required by subdivision (3)(a) of this section. Such vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection; and

(d) Unless otherwise directed by a pedestrian-control signal, pedestrians facing a steady red indication alone shall not enter the roadway.

The county court ruled that § 10.12.030 was not preempted by state law and overruled Albarenga's pretrial motions.

APPEAL TO DISTRICT COURT

Albarenga appealed to the district court, assigning as error the county court's rulings on her pretrial motions. The district court affirmed her convictions. The district court agreed with the county court that § 10.12.030 did not conflict with the Rules of the Road.

COURT OF APPEALS

Albarenga thereafter appealed to the Court of Appeals, asserting that the district court erred in affirming the county court's rulings denying her motions to quash and to suppress. Albarenga assigned that the district court erred by affirming the county court's (1) finding that § 10.12.030 is not in conflict with § 60-6,123, (2) denial of Albarenga's motion to suppress, and (3) denial of Albarenga's motion to quash count 2. The Court of Appeals also affirmed the convictions.²

The Court of Appeals found merit to Albarenga's reading of § 60-6,123 in isolation, noting that § 60-6,123, by referring in its introductory clause to "both ‘colored lights’ and ‘colored lighted arrows’ " as encompassed therein, demonstrated an awareness of both circular and arrow indications.³ Observing that what a statute does not say is as important as what it does, the Court of Appeals concluded that by setting forth in other subsections separate rules for " ‘a circular green indication’ " versus " ‘a green arrow indication,’ " while giving only one rule for " ‘a steady red indication,’ " without distinguishing between a circle and an arrow, § 60-6,123 refers by the term "steady red indication" in § 60-6,123(3)(c) to both a red arrow and a red circle.⁴

Nevertheless, the Court of...