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Connelly v. Department Of Motor Vehicles10/24/2000
s Boys' Home v. Agnew, 256 Neb. 394, 590 N.W.2d 688 (1999). An appellate court, in reviewing a district court judgment for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings. Id. When reviewing a question of law, however, an appellate court reaches a conclusion independent of the lower court's decision. Id.
When reviewing an order of a district court under the Administrative Procedure Act 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. Vinci v. Nebraska Dept. of Corr. Servs., 253 Neb. 423, 571 N.W.2d 53 (1997).
[5,6] The interpretation of statutes and regulations presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below, according deference to an agency's interpretation of its own regulations, unless plainly erroneous or inconsistent. Vinci v. Nebraska Dept. of Corr. Servs., supra. In the absence of anything to the contrary, language contained in a rule or regulation is to be given its plain and ordinary meaning. Id. An appellate court will not resort to interpretation to ascertain the meaning of words in a rule or regulation which is plain, direct, and unambiguous. Id.
ANALYSIS
The case at hand turns on the meaning of the phrase "arresting officer." Connelly alleges that the phrase should be limited to "the individual who announces the intention to arrest and takes physical control of the arrestee." Brief for appellant at 5. The DMV alleges that the hearing officer and the district court properly construed the phrase more broadly and that an arresting officer is any law enforcement official who exercises control over a suspect, regardless of whether that officer is the one who actually assumes physical control over that suspect.
[7,8] At the threshold, we must first determine whether the phrase is ambiguous, since an appellate court will not resort to interpretation to ascertain the meaning of words in a rule or regulation which is plain, direct, and unambiguous. Vinci v. Nebraska Dept. of Corr. Servs., supra. An ambiguity exists when the instrument at issue is susceptible of two or more reasonable but conflicting interpretations or meanings. Baker's Supermarkets v. Feldman, 243 Neb. 684, 502 N.W.2d 428 (1993). However, the fact that the parties have suggested opposing meanings of the disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous. Id.
The phrase "arresting officer" is not specifically defined in the relevant regulations, and we conclude that it may reasonably be subjected to more than one interpretation. We accordingly must interpret this phrase as used in § 017.02.
Black's Law Dictionary 104 (7th ed. 1999) defines arrest as follows:
1. A seizure or forcible restraint. 2. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge. . . .
lawful arrest. The taking of a person into legal custody either under a valid warrant or on probable cause that the person has committed a crime.
It is clear that in Nebraska, physical custody is not required for an arrest to have been effected. See, e.g., State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981). There, a defendant charged, inter alia, with escape from detention argued that the jury should have been instructed that "mere words cannot constitute an arrest." Id. at 225, 306 N.W.2d at 912. The
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