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Hayes v. Dep't of Motor Vehicles for the State of Nebraska12/16/2003
(not designated for permanent publication)
INTRODUCTION
The Department of Motor Vehicles and its director (collectively DMV) appeal from a judgment of the Buffalo County District Court reversing the DMV's order of revocation of William P. Hayes' driver's license. For the reasons set forth herein, we reverse, and remand.
STATEMENT OF FACTS
Hayes was stopped by Kearney, Nebraska, police officer Michael Stokes on January 30, 2002. Stokes observed Hayes operating a Ford pickup without headlights on, despite the fact that it was dark outside. Stokes flashed his headlights at Hayes in an attempt to notify Hayes that he needed to turn his headlights on; when Hayes failed to do so after the warning, Stokes turned his patrol car around and proceeded to stop Hayes.
Upon stopping Hayes, Stokes noticed an odor of an alcoholic beverage coming from the pickup, and Stokes noted that Hayes' "movements appeared to be slow and deliberate and it took him some time to locate his license and registration and insurance information." Stokes asked Hayes if Hayes had consumed alcohol during the evening. After Hayes denied consuming any alcohol, Stokes asked Hayes to perform some field sobriety tests. Hayes was able to adequately complete the "ABC's" sobriety test, but he was unable to satisfactorily complete the "counting" test, the "walk and turn" test, or the "one-legged stand" test. Hayes then submitted to a preliminary breath test, and the test was positive for the presence of alcohol above the legal limit. At that point, Hayes was placed under arrest for driving under the influence of alcohol and driving without headlights.
Hayes was then transported to a hospital in Kearney. He submitted to a chemical test at the hospital in order to determine his blood alcohol level. Prior to giving his consent for the blood test, Hayes was told by Stokes that Hayes could be charged for a separate crime if he refused to submit to the chemical test. The results of the test were received on February 5, 2002, and showed that Hayes' blood contained .23 grams of alcohol per 100 milliliters of blood, well above the legal limit.
The DMV held a hearing on March 27, 2002, after Hayes successfully perfected his appeal from the automatic license revocation pursuant to Neb. Rev. Stat. § 60-6,205 (Cum. Supp. 2002), which requires automatic revocation for a driver who "submits to the chemical test of blood or breath the test discloses the presence of alcohol in any of the concentrations specified in section 60-6,196 [Cum. Supp. 2002]." On April 3, the DMV issued an order revoking Hayes' license for 1 year, pursuant to Neb. Rev. Stat. § 60-6,206 (Cum. Supp. 2002), which provides that if an individual has incurred an administrative license revocation in the past 12 years, any subsequent revocation will be for a period of 1 year. The DMV found that " he Abstract of Record for [Hayes] indicates that on March 4, 1993, he received a 90-day Administrative License Revocation from the ."
Hayes appealed the order of the DMV to the Buffalo County District Court. A hearing on Hayes' appeal was held on July 23, 2002. The DMV was not represented at the hearing, but the DMV did prepare and submit the agency's record. At the hearing, Hayes' counsel offered into evidence the transcript and bill of exceptions from the revocation hearing, and he then "move for a default" based on the lack of appearance by the DMV. The court noted: "These proceedings are already fraught with the tribunals being captured by their employer which would be the . I don't think it's appropriate for this Court to consider the case on behalf of the State on submission." The district court then fo
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