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Chase v. Neth5/27/2005
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Section 60-498.01(6)(c) provided that if an ALR revocation hearing was requested in such a situation, the issues under dispute were limited to:
(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 pursuant to 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[.]
Although the hearing officer in this case addressed the validity of the traffic stop which preceded Chase's arrest and her refusal to submit to alcohol testing, neither party argues that the hearing officer was permitted or required to do so under § 60-498.01(6)(c). We conclude that he was not.
This statutory restriction of the scope of the ALR hearing also applies to the circumstance in which a motorist submits to a chemical test of blood or breath which discloses an alcohol concentration greater than the lawful limit. Id.; Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003). In that instance, however, the relevant statutes also provide for dismissal of the ALR proceeding or reinstatement of a license administratively revoked if there is no criminal prosecution for DUI or if such charges are dismissed or the defendant found not guilty after trial. § 60-498.02(4)(a). Thus, administrative revocation for DUI is contingent upon a successful prosecution of the motorist in a criminal DUI proceeding in which Fourth Amendment issues may be raised. Hass v. Neth, supra. We noted in Hass that because the Fourth Amendment exclusionary rule could prevent a conviction in a criminal case, it would also "indirectly [determine] the outcome of the ALR proceeding." 265 Neb. at 327, 657 N.W.2d at 20. Thus, we framed the issue presented in Hass as "not based on the 4th Amendment," but, rather, "whether 14th Amendment due process is violated by excluding 4th Amendment issues from the ALR proceeding and reserving those issues for the criminal DUI proceeding." 265 Neb. at 327, 657 N.W.2d at 20. We concluded that there was no due process violation.
There is no similar statutory linkage between an ALR and a criminal proceeding based upon a motorist's refusal to submit to chemical testing. The statutes permit an ALR in this circumstance regardless of whether criminal charges are filed or successfully prosecuted. As a result of an amendment to § 60-498.01, which became operative on October 1, 2003, the State is no longer required by statute to establish the validity of the arrest in order to obtain an ALR. 2003 Neb. Laws, L.B. 209. Cf. Young v. Neth, 263 Neb. 20, 24, 637 N.W.2d 884, 888 (2002) (holding previous version of statute required ALR to be based on "valid arrest"). Thus, the issue presented in this case is whether 14th Amendment due process is violated by the complete exclusion of 4th Amendment issues from the ALR proceedings. Resolution of that issue necessarily requires that we determine whether the Fourth Amendment exclusionary rule applies to a civil ALR proceeding, an issue which we identified but were not required to reach in Hass.
[5-7] In considering the constitutionality of the statutes at issue in this case, we are guided by certain well-established principles and presumptions. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity. Hass v. Neth, supra; State ex rel. Stenberg v. Omaha Expo. & Racing, 263 Neb. 991, 644 N.W.2d 563 (2002). A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. Hass v. Neth, supra; Andrews v. S
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