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Connelly v. Department Of Motor Vehicles10/24/2000
Nebraska Supreme Court rejected that argument:
It is not disputed that the officer announced the arrest and that the physical proximity of the officer and the defendant were such that the officer could have, had he so chosen, attempted to exert physical control; that the defendant knew he was under legal restraint and not free to leave . . . . A few courts have held that there must exist at least some slight touching by the officer to effectuate an arrest. We reject the necessity of such an act. Id.
The question remains whether it was necessary for Officer Davis to have made a formal announcement of arrest in order to be considered an arresting officer. We conclude it was not. That issue has been addressed in a roughly analogous context in another jurisdiction. See State v. Stauffer, 266 N.C. 358, 145 S.E.2d 917 (1966). There, the relevant statute prohibited the arresting officer from administering a breath alcohol test to a person suspected of driving under the influence . The defendant had been stopped by an Officer McIntosh, but was questioned and formally arrested by a Captain Broadway, who had arrived approximately simultaneously with Officer McIntosh. The defendant was then taken to the police station, where Officer McIntosh, an expert in Breathalyzer testing, administered the test. The North Carolina Supreme Court found error requiring a new trial, explaining:
The purpose of this limitation in the statute is to assure that the test will be fairly and impartially made. An officer, who is present at the scene of the arrest for purposes of assisting in it, if necessary, is an "arresting officer" within the meaning of the statute even though a different officer actually places his hand upon the defendant and informs him that he is under arrest. Id. at 359, 145 S.E.2d at 918.
Because Officer Davis was far more involved in the arrest in the instant case than Officer McIntosh had been in Stauffer, we believe the appropriate holding is that for purposes of § 017.02, Officer Davis was the arresting officer. A formal announcement of arrest is not necessary for an officer to be considered an arresting officer for purposes of § 017.02. We accordingly conclude that the district court did not err in holding that both Officers Davis and Stokes were arresting officers for purposes of § 017.02.
We further hold that the district court properly concluded that the presence of Officer Davis at the hearing, without the presence of Officer Stokes, satisfied the due process requirements of § 017.02. Such a result is the more sensible one. "A sensible construction will be placed upon a statute to effectuate the object of the legislation rather than a literal meaning that would have the effect of defeating the legislative intent." Bayer v. Father Flanagan's Boys' Home, 219 Neb. 824, 828, 366 N.W.2d 760, 763 (1985). The presence of one of two arresting officers at an administrative licence revocation hearing satisfies the due process requirements of § 017.02, when the officer who is present questioned and tested the motorist. It was Officer Davis who questioned and tested Connelly, and who was best able to provide the hearing officer with information relating to the factors underlying the revocation.
CONCLUSION
For the reasons set forth above, the judgment of the district court affirming the order of revocation by the DMV is affirmed.
Affirmed.
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