CASE NO. A-09-001159
IN THE NEBRASKA COURT OF APPEALS
KENNETH G. FREEMAN,
Appellee,
v.
BEVERLY NETH, DIRECTOR,
NEBRASKA DEPARTMENT OF MOTOR VEHICLES,
Appellant.
APPEAL FROM THE DISTRICT COURT
OF BUFFALO COUNTY, NEBRASKA
HONORABLE JOHN P. ICENOGLE,
District Judge
REPLY BRIEF OF APPELLANT
KLUTZNICK LAW LIBRARY
CREIGHTON UNIVERSITY
Prepared and submitted by:
JON BRUNING, #20351
Attorney General
Melissa R. Vincent, #23464
Assistant Attorney General
2115 State Capitol
Lincoln, NE 68509-8920
Ph: (402) 471-2653
Attorneys for Appellant.
FILED
MAY 1 3 ZOID
CLERK
NEBRASKA SUPREME COURT
COURT OFAPPEALS
TABLE OF CONTENTS
PROPOSITION OF LAW
1
ARGUMENT
1
The Department's regulation is not relevant in determining the plain
meaning of §60-498.01 (5)(a).
Freeman's proposed bright-line rule is not supported by the plain language
of § 60-498.01 (5)(a).
CONCLUSION
3
PROOF OF SERVICE
.4
Table of Authorities
CASE
Jansen v. Diller Tel. Co.
245 Neb. 81 (1994)
1
STATUTES
Neb. Rev. Stat. § 60-498.01(5)(a) (Reissue 2004)
Neb. Rev. Stat. §60-498.01 (6)(a) (Reissue 2004)
1-3
1
OTHER AUTHORITY
Nebraska Administrative Code 247 NAC Ch. 1, §§ 013.04 (2006)
ii
1
PROPOSITION OF LAW
An appellate court determines the meaning of a statute independently of the
determination made by an administrative agency.
Jansen v. Diller Tel. Co., 245 Neb. 81, 86 (1994).
ARGUMENT
Appellant incorporates by reference the arguments set forth in her initial brief and
offers the following responses to Appellee's arguments:
I.
The Department's regulation is not relevant in determining
the plain meaning of § 60-498.01(5)(a)
In advocating a broad interpretation of the term "receipt" in § 60-498.01(5)(a),
Freeman relies heavily upon Title 247, Nebraska Administrative Code, Chapter 1,
§ 013.04 (2006), a Department regulation which governs the timeliness of a Petition for
Administrative Hearing where the Director rather than the arresting officer serves notice
of the revocation upon the motorist; however, whether the provisions of § 013.04 are
consistent with the language of § 60-498.01(6)(a) is not at issue in this case.
Furthermore, "[a]n appellate court determines the meaning of a statute independently of
the determination made by an administrative agency." Jansen v. Diller Tel. Co., 245
Neb. 81, 86 (1994).
As such, § 013.04 provides no guidance to this Court in
determining the requirements of § 60-498.01(5)(a).
1
II.
Freeman's proposed bright-line rule is not supported
by the plain language of § 60-498.01(5)(a)
Freeman also urges this Court to adopt a "bright line rule" which would require
the arresting officer to forward to the Director a sworn report within 10 days after the
motorist's blood test result is delivered to the law enforcement agency, regardless of
when the arresting officer actually receives it. As discussed in Appellant's initial brief,
Freeman's proposed rule is neither supported by the plain language of § 60498.01(5)(a) nor consistent with the arresting officer's personal obligation to complete
the sworn report.
In addition, Freeman's sole justification for his proposed rule is
grounded in the mere possibility that an arresting officer "might avoid a physical receipt
of the blood test results for an indefinite period of time" and "thereby extend the ten day
period to forward the sworn report to the Director". (Appellee's Brief, pp. 6-7). While
this justification implicitly assumes some type of prejudicial delay, Freeman provides no
discussion as to how he was adversely affected by the brief delay between the date his
blood test result arrived at the Ravenna Police Department and the date Officer Strode
actually received it. In short, Freeman is advocating a broad interpretation of the term
"receipt" in § 60-498.01(5)(a) in the absence of any evidence or public policy rationale to
support it.
It also bears noting that some additional delay in the ALR process is inevitable
where the motorist submits to a blood test due to the nature of the test and the fact that
the result is not immediateiy available to the arresting officer. As noted in Appellant's
initial brief, the arresting officer has no control over the availability of the motorist's
2
blood test result nor can he or she reasonably be expected to be perpetually on duty.
To adopt Freeman's interpretation of the term "receipt" in § 60-498.01(5)(a) will
invariably allow some motorists to escape revocation based upon purely fortuitous
circumstances, such as whether his or her arresting officer was on vacation, ill, or
otherwise temporarily unavailable at the time the blood test result was delivered to the
law enforcement agency. Such a result is unjust, unwarranted, and fails to reflect the
public policy decision made by the Nebraska Legislature in enacting the ALR statutes.
CONCLUSION
For the foregoing reasons, Appellant respectfully requests this Court to reverse
the district court's decision.
Dated this
I ~,; day of May, 2010.
Respectfully Submitted,
BEVERLY NETH, DIRECTOR,
NEBRASKA DEPARTMENT OF
MOTOR VEHiCLES, Appellee
BY:
BY:
JON BRUNING, #20351
Attorney General
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Melissa R. Vincent, #23464
Assistant Attorney General
2115 State Capitol
Lincoln, NE 68509-8920
Ph: (402) 471-2653
Fx: (402) 471-2957
Attorneys for Appellant
3
PROOF OF SERVICE
STATE OF NEBRASKA
COUNTY OF LANCASTER
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I, Melissa R. Vincent, being first duly sworn, depose and state that two copies of
the brief in the above-entitled case were served upon the Appellee by depositing said
copies in the United States Mail, first class postage prepaid, addressed to Mr. David W.
Jorgensen, 4715 First Avenue Place, P.O. Box 2286, Kearney, NE 68848-2286,
counsel for Appellee.
Dated this
["3
day of May, 2010.
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Affiant
SUBSCRIBED and SWORN to before me this
GENERAL NOTARY· Siale 01 Nebfaska
PAULA A. RANSIER
,.~~ MyComm. Exp. June 25. 2011
8,
III
Notary Public
4
') 1:1\
I /) /'day of May, 2010.