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Searcey v. Nebraska Dep't of Motor Vehicles4/27/2004
The district court for Douglas County, Nebraska, affirmed the ruling of the director of the Nebraska Department of Motor Vehicles (DMV) that a continuance should be granted in an administrative license revocation (ALR) proceeding concerning Gregory D. Searcey. At the continued hearing, Searcey's motor vehicle operator's license was revoked, and he appeals, complaining that the district court's affirmance of the continuance was error.
FACTUAL AND PROCEDURAL BACKGROUND
On March 7, 2002, at 2:25 a.m., Omaha police officer Scott Gerald Shymkewicz stopped Searcey on 72d Street just south of 72d and Grover Streets for a traffic violation-turning through a red light. Officer Shymkewicz noticed that Searcey had bloodshot and glassy eyes, slurred speech, and an odor of alcohol on his breath. When asked whether he had had anything to drink, Searcey responded that he had not. Officer Shymkewicz had Searcey perform several field sobriety tests, and Searcey showed signs of impairment. Officer Shymkewicz placed Searcey under arrest for suspicion of driving under the influence of alcohol after a result of 0.147 grams of alcohol per 210 liters of breath on a preliminary breath test. Searcey was transported to central police headquarters, where he refused to submit to an Intoxilyzer test. Officer Shymkewicz completed a sworn report and filed it with the DMV. He read Searcey a verbal notice of motor vehicle operator's license revocation and gave him a copy of the notice.
A petition for an ALR hearing concerning Searcey was received by the DMV on March 12, 2002, and a hearing was scheduled for March 21. Officer Shymkewicz sent a fax dated March 16, 2002, to the DMV, stating that he was unavailable for the ALR hearing and that he hoped that it could be rescheduled. The fax was file stamped as received on March 18. An order to continue was entered by the director of the DMV. Searcey filed a motion to dismiss which was denied. On April 4, an ALR hearing to determine whether Searcey had refused to submit to a chemical test, in violation of Neb. Rev. Stat. § 60-6,197 (Cum. Supp. 2002), was held before a hearing officer of the DMV. The hearing officer recommended that Searcey's license be suspended for 1 year, and the director of the DMV entered such an order. Searcey appealed to the district court for Douglas County, which affirmed the director's decision. Searcey now appeals the district court's decision.
ASSIGNMENT OF ERROR
Searcey alleges that the DMV's grant of a continuance was error because no good cause was shown in accordance with the regulations found in the Nebraska Administrative Code. We interpret this as a complaint that the district court should therefore not have affirmed the order of revocation.
STANDARD OF REVIEW
[1-3] Decisions of the director of the DMV, under Nebraska's administrative revocation statutes, are appealed under the Administrative Procedure Act (APA). Reiter v. Wimes, 263 Neb. 277, 640 N.W.2d 19 (2002). A final order rendered by a district court in a judicial review pursuant to the APA may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Neb. Rev. Stat. § 84-918(3) (Reissue 1999); Trackwell v. Nebraska Dept. of Admin. Servs., 8 Neb. App. 233, 591 N.W.2d 95 (1999). When reviewing 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
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