Gracey v. Zwonechek

643 N.W.2d 381, 263 Neb. 796, 2002 Neb. LEXIS 107
CourtNebraska Supreme Court
DecidedMay 3, 2002
DocketS-00-149, S-00-285, S-00-286
StatusPublished
Cited by7 cases

This text of 643 N.W.2d 381 (Gracey v. Zwonechek) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gracey v. Zwonechek, 643 N.W.2d 381, 263 Neb. 796, 2002 Neb. LEXIS 107 (Neb. 2002).

Opinion

*797 McCormack, J.

NATURE OF CASE

In these consolidated cases, Kade M. Gracey, Larry L. Janssen, and Kimberly D. Stetson (collectively the appellants) appeal from the district courts’ orders affirming the decisions and orders of revocation entered by the director of the Nebraska Department of Motor Vehicles (the Department) following administrative license revocation hearings. Because the appellants’ respective administrative license revocation hearings were not held in the counties in which the appellants were arrested, as required by Neb. Rev. Stat. § 60-6,205(6)(a) (Reissue 1998), we reverse, and remand with directions.

BACKGROUND

Each of the three cases share common facts as they relate to the issues raised on appeal. The appellants, in separate and unrelated incidents, were contacted by law enforcement officers who detected the smell of alcohol on or about the appellants. Field sobriety tests were administered, and the appellants failed to satisfactorily complete the tests. Two of the appellants also subsequently failed preliminary breath tests.

The appellants were arrested pursuant to Neb. Rev. Stat. § 60-6,197 (Reissue 1998 & Supp. 1999). Gracey was arrested in Dawes County, while Janssen and Stetson were each arrested in Sheridan County. Upon being arrested, each appellant was read a postarrest chemical test advisement form. This document informed the appellants that they were required to submit to a chemical test of their blood, breath, or urine and that “[Refusal to submit to such test or tests is a separate crime for which you may be charged.” The appellants agreed to submit to chemical testing. The chemical test results indicated the presence of alcohol in excess of the legal limit.

The appellants subsequently petitioned for hearings before the director of the Department to contest the revocation of their driver’s licenses. Gracey’s hearing was held via videoconference, with the hearing officer located in Lancaster County and all other participants located in Dawes County. Janssen’s hearing utilized teleconference hearing procedures, with the hearing officer located in Lancaster County, Janssen’s attorney located *798 in Dawes County, and the arresting officer located in Sheridan County. Stetson’s hearing also used teleconference hearing procedures, with the hearing officer located in Lancaster County, Stetson and her attorney located in Dawes County, and the arresting officer located in Sheridan County.

At each hearing, the appellants objected to the venue of the hearing, as discussed in further detail below. Following the hearings, the appellants’ driver’s licenses were revoked by the director after finding, inter alia, that the appellants’ venue objections were without merit. The appellants timely appealed their revocations to the district courts for the counties in which the arrests occurred. The district courts affirmed the director’s decisions, and these appeals followed.

ASSIGNMENTS OF ERROR

Three assignments of error are common to the appellants. The appellants assign, restated, that the district courts erred in (1) finding that the license revocation hearings were held in accordance with § 60-6,205(6)(a); (2) finding that the Department’s “Notice/Swom Report/Temporary License” forms were supported by sufficient foundation and were properly received into evidence; and (3) finding that the postarrest chemical test advisement forms provided sufficient notice of the consequences of failing the chemical test.

Janssen and Stetson each additionally assign that the district court erred in finding that their license revocation hearings were held in accordance with Neb. Rev. Stat. § 84-913.03 (Reissue 1999).

Finally, Janssen raises one assignment of error unique to his case. He assigns that the district court erred in finding that his arrest was supported by probable cause.

Because the appellants’ first assignment of error is dispositive, we do not address the remaining assignments of error.

STANDARD OF REVIEW

A final order entered by a district court in a judicial review pursuant to the Administrative Procedure Act (APA) may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Father Flanagan’s Boys’ Home v. Agnew, 256 Neb. 394, 590 N.W.2d 688 (1999). When reviewing *799 an order of a district court under the APA 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. Id.

Interpretation of statutes presents a question of law, and an appellate court is obligated to reach an independent conclusion, irrespective of the decision made by the court below, with deference to the agency’s interpretation of its own regulations, unless plainly erroneous or inconsistent. Vinci v. Nebraska Dept. of Corr. Servs., 253 Neb. 423, 571 N.W.2d 53 (1997).

ANALYSIS

The appellants argue that their license revocation hearings were not held in accordance with § 60-6,205(6)(a). This statute provides that administrative license revocation hearings “shall be conducted in the county in which the arrest occurred or in any other county agreed to by the parties.” During each of the appellants’ license revocation hearings, the hearing officer was located in Lancaster County.

The argument made by the appellants has been raised before this court on several prior occasions; however, we have not yet had the opportunity to address it. In Muir v. Nebraska Dept. of Motor Vehicles, 260 Neb. 450, 618 N.W.2d 444 (2000), we held that § 60-6,205(6)(a) is a venue statute and that generalized objections to the method by which the hearing was being conducted were not proper objections to venue. See, also, Davis v. Wimes, ante p. 504, 641 N.W.2d 37 (2002); Reiter v. Wimes, ante p. 277, 640 N.W.2d 19 (2002). In both Davis and Reiter, we did not reach the substantive merits of the defendants’ arguments because the defendants failed to properly object to the venue of their hearings and because their subsequent participation in the hearings acted as a waiver of any objection they may have had. The consolidated cases currently before us suffer from no such defect.

At Gracey’s hearing, his attorney objected to “the conduct of this hearing with regard to the in-county requirement.” He later stated:

[T]he statute 60-6,205(6)(a) . . .

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Bluebook (online)
643 N.W.2d 381, 263 Neb. 796, 2002 Neb. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gracey-v-zwonechek-neb-2002.