60-498.01 Driving under influence of alcohol; operator's license; confiscation and revocation; procedures; appeal. - Nebraska Statutes

60-498.01. Driving under influence of alcohol; operator's license; confiscation and revocation; procedures; appeal.(1) Because persons who drive while under the influence of alcohol present a hazard to the health and safety of all persons using the highways, a procedure is needed for the swift and certain revocation of the operator's license of any person who has shown himself or herself to be a health and safety hazard (a) by driving with an excessive concentration of alcohol in his or her body or (b) by driving while under the influence of alcohol.(2) If a person arrested as described in subsection (2) of section 60-6,197 refuses to submit to the chemical test of blood, breath, or urine required by section 60-6,197, the test shall not be given except as provided in section 60-6,210 for the purpose of medical treatment and the arresting peace officer, as agent for the Director of Motor Vehicles, shall verbally serve notice to the arrested person of the intention to immediately confiscate and revoke the operator's license of such person and that the revocation will be automatic thirty days after the date of arrest unless a petition for hearing is filed within ten days after the date of arrest as provided in subsection (6) of this section. The arresting peace officer shall within ten days forward to the director a sworn report stating (a) that the person was arrested as described in subsection (2) of section 60-6,197 and the reasons for such arrest, (b) that the person was requested to submit to the required test, and (c) that the person refused to submit to the required test.(3) If a person arrested as described in subsection (2) of section 60-6,197 submits to the chemical test of blood or breath required by section 60-6,197, the test discloses the presence of alcohol in any of the concentrations specified in section 60-6,196, and the test results are available to the arresting peace officer while the arrested person is still in custody, the arresting peace officer, as agent for the director, shall verbally serve notice to the arrested person of the intention to immediately confiscate and revoke the operator's license of such person and that the revocation will be automatic thirty days after the date of arrest unless a petition for hearing is filed within ten days after the date of arrest as provided in subsection (6) of this section. The arresting peace officer shall within ten days forward to the director a sworn report stating (a) that the person was arrested as described in subsection (2) of section 60-6,197 and the reasons for such arrest, (b) that the person was requested to submit to the required test, and (c) that the person submitted to a test, the type of test to which he or she submitted, and that such test revealed the presence of alcohol in a concentration specified in section 60-6,196.(4) On behalf of the director, the arresting peace officer submitting a sworn report under subsection (2) or (3) of this section shall serve notice of the revocation on the arrested person, and the revocation shall be effective thirty days after the date of arrest. The notice of revocation shall contain a statement explaining the operation of the administrative revocation procedure. The peace officer shall also provide to the arrested person an addressed envelope and a petition form which the arrested person may use to request a hearing before the director to contest the revocation. The petition form shall clearly state on its face that the petition must be completed and delivered to the Department of Motor Vehicles or postmarked within ten days after receipt or the person's right to a hearing to contest the revocation will be foreclosed. The director shall prepare and approve the form for the petition, the addressed envelope, and the notice of revocation and shall provide them to law enforcement agencies.If the person has an operator's license, the arresting peace officer shall take possession of the license and issue a temporary operator's license valid for thirty days. The arresting peace officer shall forward the operator's license to the department along with the sworn report made under subsection (2) or (3) of this section.(5)(a) If the results of a chemical test indicate the presence of alcohol in a concentration specified in section 60-6,196, the results are not available to the arresting peace officer while the arrested person is in custody, and the notice of revocation has not been served as required by subsection (4) of this section, the peace officer shall forward to the director a sworn report containing the information prescribed by subsection (3) of this section within ten days after receipt of the results of the chemical test. If the sworn report is not received within ten days, the revocation shall not take effect.(b) Upon receipt of the report, the director shall serve the notice of revocation on the arrested person by certified or registered mail to the address appearing on the records of the director. If the address on the director's records differs from the address on the arresting peace officer's report, the notice shall be sent to both addresses. The notice of revocation shall contain a statement explaining the operation of the administrative revocation procedure. The director shall also provide to the arrested person an addressed envelope and a petition form which the arrested person may use to request a hearing before the director to contest the revocation. The petition form shall clearly state on its face that the petition must be completed and delivered to the department or postmarked within ten days after receipt or the person's right to a hearing to contest the revocation will be foreclosed. The director shall prepare and approve the form for the petition, the addressed envelope, and the notice of revocation. The revocation shall be effective thirty days after the date of mailing.(c) If the records of the director indicate that the arrested person possesses an operator's license, the director shall include with the notice of revocation a temporary operator's license which expires thirty days after the date of mailing. Any arrested person who desires a hearing and has been served a notice of revocation pursuant to this subsection shall return his or her operator's license with the petition requesting the hearing. If the operator's license is not included with the petition requesting the hearing, the director shall deny the petition.(6)(a) An arrested person's operator's license confiscated pursuant to subsection (4) of this section shall be automatically revoked upon the expiration of thirty days after the date of arrest. An arrested person's operator's license confiscated pursuant to subsection (5) of this section shall be automatically revoked upon the expiration of thirty days after the date of mailing of the notice of revocation by the director. The arrested person shall postmark or return to the director a petition within ten days after the receipt of the notice of revocation if the arrested person desires a hearing. The petition shall be in writing and shall state the grounds on which the person is relying to prevent the revocation from becoming effective. The hearing and any prehearing conference may be conducted in person or by telephone, television, or other electronic means at the discretion of the director, and all parties may participate by such means at the discretion of the director.(b) The director shall conduct the hearing within twenty days after a petition is filed. Upon receipt of a petition, the director shall notify the petitioner of the date and location for the hearing by certified or registered mail postmarked at least seven days prior to the hearing date. The filing of the petition shall not prevent the automatic revocation of the petitioner's operator's license at the expiration of the thirty-day period. A continuance of the hearing to a date beyond the expiration of the temporary operator's license shall stay the expiration of the temporary license when the request for continuance is made by the director.(c) At hearing the issues under dispute shall be limited to:(i) In the case of a refusal to submit to a chemical test of blood, breath, or urine:(A) Did the peace officer have probable cause to believe the person was operating or in the actual physical control of a motor vehicle in violation of section 60-6,196 or a city or village ordinance enacted in conformance with such section; and(B) Did the person refuse to submit to or fail to complete a chemical test after being requested to do so by the peace officer; or(ii) If the chemical test discloses the presence of alcohol in a concentration specified in section 60-6,196:(A) Did the peace officer have probable cause to believe the person was operating or in the actual physical control of a motor vehicle in violation of section 60-6,196 or a city or village ordinance enacted in conformance with such section; and(B) Was the person operating or in the actual physical control of a motor vehicle while having an alcohol concentration in violation of subsection (1) of section 60-6,196.(7) The director shall adopt and promulgate rules and regulations to govern the conduct of the hearing and insure that the hearing will proceed in an orderly manner. The director may appoint a hearing officer to preside at the hearing, administer oaths, examine witnesses, take testimony, and report to the director. All proceedings before the hearing officer shall be recorded. Upon receipt of the arresting peace officer's sworn report, the director's order of revocation has prima facie validity and it becomes the petitioner's burden to establish by a preponderance of the evidence grounds upon which the operator's license revocation should not take effect. The director shall make a determination of the issue within seven days after the conclusion of the hearing. A person whose operator's license is revoked following a hearing requested pursuant to this section may appeal the order of revocation as provided in section 60-498.04. SourceLaws 1972, LB 1095, § 5; C.S.Supp.,1972, § 39-727.16; Laws 1992, LB 872, § 4; Laws 1992, LB 291, § 9; R.S.Supp.,1992, § 39-669.15; Laws 1993, LB 370, § 300; Laws 1996, LB 939, § 3; Laws 1998, LB 309, § 15; Laws 2001, LB 38, § 51; R.S.Supp.,2002, § 60-6,205; Laws 2003, LB 209, § 4; Laws 2004, LB 208, § 5.Annotations1. Constitutionality2. Refusal to submit to test3. Rules and regulations4. Venue5. Prima facie case6. Miscellaneous1. ConstitutionalityThe administrative license revocation provisions pertaining to motorists who refuse to submit to chemical testing do not violate the due process or equal protection rights of those motorists by treating them differently than motorists who submit to, but fail, such testing. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).The due process rights of a motorist who refuses to submit to chemical testing are not violated by this section even though the statutory scheme does not operate to reinstate the motorist's administratively revoked driver's license if he or she is acquitted of the criminal refusal charge. Kenley v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006).This section does not violate the Equal Protection Clauses of the federal and state Constitutions by treating motorists who refuse to submit to chemical testing differently than motorists who submit to, but fail, such testing. Kenley v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006).Although this section does not allow a motorist to challenge the validity of the initial traffic stop, it does not violate due process because the Fourth Amendment exclusionary rule is not applicable in civil license revocation proceedings. Chase v. Neth, 269 Neb. 882, 697 N.W.2d 675 (2005).This section does not create an unconstitutional classification between those who submit to urine tests and those who submit to blood and breath tests pursuant to this section. Kalisek v. Abramson, 257 Neb. 517, 599 N.W.2d 834 (1999).Administrative license revocation statutes are reviewed using the rational relationship standard of review. The administrative license revocation statutes do not violate equal protection, nor do they constitute cruel and unusual punishment. Schindler v. Department of Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).The Legislature intended administrative license revocation to be a civil sanction, and the sanction is not so punitive in purpose or effect as to negate the Legislature's intent; therefore, administrative license revocation for failure to submit to a chemical test does not violate double jeopardy. State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998).The purpose of administrative license revocation is to protect the public from the health and safety hazards of driving and to deter drunk driving. Criminal prosecution and punishment following a hearing under this section do not violate the Double Jeopardy Clause of the U.S. Constitution. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).2. Refusal to submit to testThe sworn report of the arresting officer must indicate (1) that the person was arrested as described in section 60-6,197(2) and the reasons for the arrest, (2) that the person was requested to submit to the required test, and (3) that the person refused to submit to the required test. Nothnagel v. Neth, 276 Neb. 95, 752 N.W.2d 149 (2008).Failure to produce an adequate breath sample constitutes a refusal to submit to breath test. Porter v. Jensen, 223 Neb. 438, 390 N.W.2d 511 (1986).A motorist's subsequent offer to take a blood alcohol test previously refused does not nullify or cure such driver's initial refusal to take the test requested by the arresting officer. Hoyle v. Peterson, 216 Neb. 253, 343 N.W.2d 730 (1984).Adoption of this section did not change rule that refusal to submit to test may be shown in prosecution for driving while under influence of intoxicating liquor. State v. Meints, 189 Neb. 264, 202 N.W.2d 202 (1972).3. Rules and regulationsWhen the applicable rules and regulations are not strictly complied with, the Department of Motor Vehicles cannot obtain the benefit of a presumption that all facts recited in the sworn report are true. Morrissey v. Department of Motor Vehicles, 264 Neb. 456, 647 N.W.2d 644 (2002).Due process is denied where the rules and regulations governing the administrative license revocation procedure were not on file with the Secretary of State for at least 5 days at the time of the arrest. Dannehl v. Department of Motor Vehicles, 3 Neb. App. 492, 529 N.W.2d 100 (1995).4. VenueFor purposes of subsection (6)(a) of this section, an administrative license revocation hearing is held at the location of the hearing officer. Gracey v. Zwonechek, 263 Neb. 796, 643 N.W.2d 381 (2002).Pursuant to subsection (6)(a) of this section, generalized objections directed to the method by which a license revocation hearing was being held are not objections to venue. Davis v. Wimes, 263 Neb. 504, 641 N.W.2d 37 (2002).Subsection (6)(a) of this section is a venue statute. Reiter v. Wimes, 263 Neb. 277, 640 N.W.2d 19 (2002).Subsection (6)(a) of this section, establishing the location for administrative license revocation hearings, is a venue statute. A telephonic hearing under the Administrative Procedure Act pertaining to license revocation is subject to the terms of subsection (6)(a) of this section. Muir v. Nebraska Dept. of Motor Vehicles, 260 Neb. 450, 618 N.W.2d 444 (2000).5. Prima facie caseThe arresting officer's sworn report triggers the administrative license revocation process by establishing a prima facie basis for revocation. Nothnagel v. Neth, 276 Neb. 95, 752 N.W.2d 149 (2008).A sworn statement containing the recitations required by this section establishes a prima facie case under the provisions of the administrative license revocation statutes. McPherrin v. Conrad, 248 Neb. 561, 537 N.W.2d 498 (1995).The burden is upon the state to make a prima facie case for revocation before the director. Mackey v. Director of Motor Vehicles, 194 Neb. 707, 235 N.W.2d 394 (1975).6. MiscellaneousAn acknowledgment on a sworn report which does not set forth the name of the individual making the acknowledgment, i.e., the arresting officer, does not substantially comply with the requirements of Nebraska law. Johnson v. Neth, 276 Neb. 886, 758 N.W.2d 395 (2008).Sworn reports in administrative license revocation proceedings are, by definition, affidavits. Johnson v. Neth, 276 Neb. 886, 758 N.W.2d 395 (2008).Although this section limits the issues under dispute, it does not prohibit evidence pertinent to the issue of enhancement after those issues have been resolved. Stenger v. Department of Motor Vehicles, 274 Neb. 819, 743 N.W.2d 758 (2008).In an administrative license revocation proceeding, the sworn report of the arresting officer must, at a minimum, contain the information specified in subsection (3) of this section in order to confer jurisdiction. Snyder v. Department of Motor Vehicles, 274 Neb. 168, 736 N.W.2d 731 (2007).In an administrative license revocation proceeding, the sworn report of the arresting officer must, at a minimum, contain the information specified in the applicable statute in order to confer jurisdiction. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).The failure to hold a hearing within the time provided in subsection (6)(b) of this section does not invalidate the administrative license revocation proceeding unless the motorist can show that he or she was prejudiced by the delay. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).A report that does not contain the affirmation of an "arresting peace officer" that the facts recited in the report are true is not a proper "sworn report" as required by this section. Arndt v. Department of Motor Vehicles, 270 Neb. 172, 699 N.W.2d 39 (2005).An arresting officer's sworn report must, at a minimum, contain the information specified in this section in order to confer jurisdiction upon the Department of Motor Vehicles to revoke an operator's license. Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005).Pursuant to subsection (2) of this section, the administrative license revocation process must be based on a valid arrest, because the sworn report which triggers the administrative license revocation must be prepared by an "arresting peace officer" who has "validly arrested" a driver. Young v. Neth, 263 Neb. 20, 637 N.W.2d 884 (2002).Under subsection (6)(c)(i)(A) of this section, a peace officer must have probable cause prior to revoking a driver's license for refusal to submit to a chemical test. State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998).Pursuant to subsection (3) of this section, after January 1, 1993, a person who agrees to submit to a chemical test and fails it is subject to automatic administrative license revocation. Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995).The oath to an affidavit is not required to be administered with any particular ceremony, but the affiant must perform some corporal act whereby he consciously takes upon himself the obligation of an oath. Moore v. Peterson, 218 Neb. 615, 358 N.W.2d 193 (1984).This section simply forstalls a forcible taking of a specimen. Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973).This section is pari materia with section 39-727.03 (transferred to section 60-6,197), and other sections mentioned in opinion. Stevenson v. Sullivan, 190 Neb. 295, 207 N.W.2d 680 (1973).Although this section requires the "sworn report" required by subsection (2) of this section to include the "reasons for [the] arrest," an arresting officer need not specifically delineate on the sworn report all of the information contained on an attached probable cause form, so long as the sworn report provides adequate notice that one is being accused of driving under the influence and/or failure of a chemical test. Taylor v. Wimes, 10 Neb. App. 432, 632 N.W.2d 366 (2001).When an arrested driver is released before the results of blood alcohol content testing are known to the arresting officer, then under subsection (5)(a) of this section (60-6,205 (Reissue 1993)) the arresting officer is "unable to serve" notice, and the statutory provision allowing service by certified mail by the Department of Motor Vehicles becomes operative. Kuebler v. Abramson, 4 Neb. App. 420, 544 N.W.2d 513 (1996).