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Connelly v. Department Of Motor Vehicles10/24/2000
llowed the vehicle and sounded the cruiser's siren. The vehicle pulled over near 28th and Douglas Streets.
Officer Davis then approached the vehicle and talked with the driver, who was the appellant, Connelly. Officer Davis observed and questioned Connelly, and administered field sobriety tests upon him. Officer Davis then had Connelly take a preliminary breath test, which Connelly failed. It was stipulated at the administrative license revocation hearing before the DMV that it was Officer Stokes who placed handcuffs upon Connelly, informed him that he was under arrest, and took physical control of him. Connelly was then transported to central police headquarters, where he took a chemical breath test which resulted in an alcohol level reading of .164 grams of alcohol per 210 liters of breath.
Officer Davis then prepared the documents for an administrative hearing regarding revocation of Connelly's driving privileges. That hearing was held on January 14, 1999. Connelly was represented by counsel. Officer Davis appeared on behalf of the DMV; Officer Stokes did not appear. At the hearing, Connelly did not testify or offer exhibits, nor did he object to introduction of exhibits offered in support of the DMV's position. Connelly did, however, move to dismiss the proceedings based upon 247 Neb. Admin. Code, ch. 1, § 017.02 (1998). That regulation provides that " he failure of the arresting officer to appear or be otherwise available for cross-examination shall be cause for dismissal of the administrative license revocation by the Department of Motor Vehicles except when the motorist does not appear or make any showing." Connelly argued that Officer Stokes was the "arresting officer" for purposes of § 017.02 and that the proceeding should accordingly be dismissed due to the absence of Officer Stokes.
The hearing officer left the record open until January 19, 1999, in order to permit Connelly to supplement the record on that issue. Connelly did not do so, instead submitting a letter on January 19, asserting that the record "already contains any evidence relevant to the issue presented" and iterating his argument for dismissal on the ground that Officer Stokes should have been present at the hearing.
The hearing officer entered an order on January 20, 1999, concluding that Officer Davis was the arresting officer for purposes of § 017.02 and recommending that the DMV revoke Connelly's driving privileges. The following day, the director of the DMV issued an order adopting the hearing officer's proposed findings of fact, conclusions of law, and recommended order of revocation.
Connelly then appealed to the Douglas County District Court. On August 16, 1999, the district court entered an order affirming the order of revocation. Specifically, the district court found that both Officers Stokes and Davis were arresting officers for purposes of § 017.02. The court concluded that because Officer Davis was present at the hearing, § 017.02 was satisfied. The district court accordingly affirmed the order of revocation.
Connelly timely filed the instant appeal on September 14, 1999.
ASSIGNMENT OF ERROR
Connelly makes one assignment of error: The district court erred in failing to find that the arresting officer was not present at the administrative hearing and in accordingly affirming the order of revocation.
STANDARD OF REVIEW
[1-3] A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Neb. Rev. Stat. § 84-918(3) (Reissue 1999); Father Flanagan'
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