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07/17/2020 01:07 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        306 Nebraska Reports
                                                TRAVIS v. LAHM
                                               Cite as 306 Neb. 418




                         Harold Travis, appellant, v. Rhonda K. Lahm,
                             director, Nebraska Department of
                                 Motor Vehicles, appellee.
                                                  ___ N.W.2d ___

                                        Filed July 10, 2020.    No. S-19-585.

                 1. Administrative Law: Judgments: Appeal and Error. 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.
                 2. ____: ____: ____. 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 com-
                    petent evidence, and is neither arbitrary, capricious, nor unreasonable.
                 3. Judgments. Whether a decision conforms to law is by definition a ques-
                    tion of law.
                 4. Judgments: Appeal and Error. An appellate court determines ques-
                    tions of law independently of the lower court.
                 5. Administrative Law: Motor Vehicles: Licenses and Permits:
                    Revocation: Police Officers and Sheriffs: Proof. In an administrative
                    license revocation hearing, the State establishes its prima facie case for
                    license revocation by submitting the arresting officer’s sworn report.
                    Thereafter, the burden of proof rests solely with the motorist, who must
                    show by a preponderance of the evidence that the requirements of revo-
                    cation are not satisfied.

                  Appeal from the District Court for Cheyenne County: Derek
               C. Weimer, Judge. Affirmed.
                    Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
                 Douglas J. Peterson, Attorney General, and Milissa D.
               Johnson-Wiles for appellee.
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                         TRAVIS v. LAHM
                        Cite as 306 Neb. 418

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.

   Papik, J.
   Harold Travis appeals from a district court order affirming
the revocation of his motor vehicle operator’s license for refus-
ing to submit to a chemical test of his breath. Travis asserts
that he did not refuse to submit to a chemical test because he
did not understand he was being asked to submit to a chemical
test and because the arresting officer misled him as to the rela-
tive seriousness of a failure to submit to such a test. We find
the district court’s decision was not contrary to law and was
supported by competent evidence and therefore affirm.

                        BACKGROUND
Travis’ Arrest.
   Around 10:30 p.m. on December 6, 2018, in Cheyenne
County, Nebraska, Austin Smith, a police officer with the
Sidney Police Department, determined that the vehicle Travis
was driving was exceeding the speed limit. Smith initiated a
traffic stop. When Smith approached Travis, he detected the
odor of alcohol and marijuana coming from the vehicle and
began to investigate whether Travis was driving under the
influence. To facilitate that investigation, Smith asked Travis
to leave his vehicle and to sit in the front passenger seat of the
patrol vehicle. Travis complied.
   After Travis moved to the patrol vehicle, Smith noticed
an even stronger smell of alcohol and the smell of burnt
marijuana. Travis admitted to drinking alcohol and smok-
ing marijuana earlier that afternoon. Smith then administered
standardized field sobriety tests during which Travis showed
signs of impairment. At that point, Smith asked Travis to
submit to a preliminary breath test. Travis refused, and Smith
arrested him.
   Shortly after the arrest, Smith asked Travis to submit to a
chemical test. Travis did not agree to take the chemical test.
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          Nebraska Supreme Court Advance Sheets
                   306 Nebraska Reports
                          TRAVIS v. LAHM
                         Cite as 306 Neb. 418

License Revocation Proceedings.
   A few days after Travis’ arrest, Smith submitted a sworn
report to the Department of Motor Vehicles (Department). In
the report, Smith stated that he had stopped Travis’ vehicle for
speeding, that he had detected the odor of alcohol and mari-
juana, that Travis did not complete standard field sobriety tests
as directed, that Travis had refused to take a preliminary breath
test, that he had placed Travis under arrest, that he had read
Travis the postarrest chemical test advisement form, and that
Travis had refused to take the chemical test.
   Travis filed a petition contesting the revocation of his license
and requested a hearing. A hearing officer for the Department
presided over a telephonic hearing at which Travis was rep-
resented by counsel. Travis and Smith testified about their
roadside encounter, with most of their testimony focused on
their interaction after Travis was arrested. On this topic, the
testimony of Travis and Smith diverged.
   Travis testified that less than a minute after he refused to
take the preliminary breath test and while he and Smith were
still at the same roadside location, Smith asked him to take
another breath test. According to Travis, Smith did not explain
this chemical test was a different test than the preliminary
breath test he had refused earlier, and Travis did not understand
he was being asked to submit to a separate test. Travis also
testified that he asked the officer about the relative seriousness
of the consequences of driving under the influence and refusing
a test, and the officer told him that driving under the influence
was “a worse offense than the refusal.” Travis admitted that he
was asked to submit to a chemical test and that he declined to
take the test. He also testified that he declined to take the test
because of the information Smith provided regarding refusal
being a less serious offense.
   Smith testified that shortly after he placed Travis under
arrest and while still at the scene of the arrest, Smith read
Travis the postarrest chemical test advisement form, instructed
Travis that the chemical test was separate from the preliminary
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                         TRAVIS v. LAHM
                        Cite as 306 Neb. 418

breath test, and asked Travis to submit to a chemical test.
According to Smith, Travis refused to take the chemical test. In
response to questioning from Travis’ counsel, Smith acknowl-
edged that at some point, Travis asked him questions about the
consequences of refusing a test. Smith testified that he did not
fully understand Travis’ question and that he did not recall say-
ing that driving under the influence was more serious than a
refusal. Smith remembered saying that he was arresting Travis
for driving under the influence and that if he refused a test,
Travis “would go to jail for that too.”
   After the submission of evidence, Travis contended that he
did not understand he was being asked to submit to a test other
than the preliminary breath test and that the officer told him
that driving under the influence was more serious than refus-
ing a test. Under those circumstances, he argued, a refusal had
not occurred.
   The hearing officer recommended revocation of Travis’
operator’s license. In a recommended order of revocation, the
hearing officer stated that a refusal occurs when a motorist
behaves in a way that would justify a reasonable person in the
officer’s position to believe the motorist understood he was
being directed to take a test and that he displayed an unwill-
ingness to do so. The hearing officer found that, under this
standard, a refusal occurred, emphasizing that Travis admitted
he knew he was being asked to take a test and he chose not
to cooperate.
   The director of the Department adopted the hearing offi-
cer’s recommended order and revoked Travis’ license. Travis
appealed to the district court.

District Court.
   The district court affirmed the director’s revocation of
Travis’ driving privileges in a written order. In its order, the
district court acknowledged Travis’ arguments that he did not
refuse to submit to a chemical test because the officer “gave
him incorrect information regarding the consequences of a
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                         TRAVIS v. LAHM
                        Cite as 306 Neb. 418

refusal and . . . he did not understand what he was being
asked to do.” But the district court concluded that under State
v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991), the fact that
Travis misunderstood exactly what he was being asked to do
or the consequences of refusing the chemical test were not rel-
evant. The only relevant questions, the district court asserted,
were whether Travis was asked to take a test and whether he
refused. The district court concluded that the record showed
Travis was both asked to take a chemical test and refused and
that thus, revocation of his license was proper.
   Travis timely appeals from the district court’s order.
                   ASSIGNMENT OF ERROR
   Travis assigns one error on appeal. Travis argues, restated,
that the district court erred in failing to find that the require-
ments for revocation of his driver’s license were not satisfied.
                    STANDARD OF REVIEW
   [1,2] 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. Hoppens v. Nebraska Dept. of
Motor Vehicles, 288 Neb. 857, 852 N.W.2d 331 (2014). When
reviewing an order of a district court under the 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. Id.
   [3,4] Whether a decision conforms to law is by definition a
question of law. Id. An appellate court determines questions of
law independently of the lower court. Id.
                         ANALYSIS
Background Regarding Administrative
License Revocation.
   Before addressing Travis’ arguments, we briefly review the
law governing this administrative license revocation proceed-
ing. Under Nebraska statute, any person who operates a motor
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                         TRAVIS v. LAHM
                        Cite as 306 Neb. 418

vehicle is deemed to have given his or her consent to submit to
a chemical test of his or her blood, breath, or urine for the pur-
pose of determining the concentration of alcohol or the pres-
ence of drugs. See Neb. Rev. Stat. § 60-6,197(1) (Cum. Supp.
2018). Another subsection of the same statute authorizes peace
officers to, under certain circumstances, require persons they
have arrested to submit to a chemical test. See § 60-6,197(2).
The refusal to submit to such a chemical test is a crime just as
driving a motor vehicle while under the influence of alcohol
or drugs is a crime. See State v. Cornwell, 294 Neb. 799, 884
N.W.2d 722 (2016).
   If a person refuses to submit to a chemical test as described
above, the officer is also to inform the arrested person of
the intention to confiscate and revoke the arrestee’s driver’s
license. See Neb. Rev. Stat. § 60-498.01(2) (Cum. Supp. 2018).
The officer is directed to initiate the revocation procedure by
sending to the director of the Department a sworn report stat-
ing “(a) that the person was arrested as described in subsec-
tion (2) of section 60-6,197 and the reasons for such arrest,
(b) that the person was requested to submit to the required
test, and (c) that the person refused to submit to the required
test.” § 60-498.01(2). The arrested person may then request an
administrative license revocation hearing at which the revoca-
tion of the person’s driver’s license may be challenged.
   [5] In an administrative license revocation hearing, the State
establishes its prima facie case for license revocation by sub-
mitting the arresting officer’s sworn report. Urwiller v. Neth,
263 Neb. 429, 640 N.W.2d 417 (2002). Thereafter, the burden
of proof rests solely with the motorist, who must show by a
preponderance of the evidence that the requirements of revoca-
tion are not satisfied. Id.
   In this appeal, Travis does not dispute that Smith’s sworn
report established a prima facie case for license revocation.
Instead, he argues that the district court erred by not finding
he had demonstrated that the requirements of revocation were
not satisfied. Specifically, Travis contends that the evidence
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                         TRAVIS v. LAHM
                        Cite as 306 Neb. 418

introduced at the administrative license revocation hearing
showed that he did not refuse to take a chemical test. We turn
to that question now.

Refusal of Chemical Test.
   We have held that a refusal of a chemical test takes place
when the motorist’s conduct allows a reasonable person in the
officer’s position to believe that the motorist was capable of
refusal and manifested an unwillingness to submit to the test.
See, e.g., Betterman v. Department of Motor Vehicles, 273 Neb.
178, 728 N.W.2d 570 (2007); State v. Green, 238 Neb. 328,
470 N.W.2d 736 (1991), overruled on other grounds, State
v. Vann, ante p. 91, ___ N.W.2d ___ (2020); Wohlgemuth v.
Pearson, 204 Neb. 687, 285 N.W.2d 102 (1979). As we origi-
nally explained when adopting that rule in Wohlgemuth, “any
other result would force the director and the trial court into a
psychological guessing game as to the [driver’s] state of mind
and his degree of capability of comprehension.” 204 Neb. at
691, 285 N.W.2d at 104. We have also held that a motorist is
capable of refusal even if he or she does not understand the
consequences of refusing or is not able to make a reasoned
judgment as to what course of action to take. The only under-
standing required on the part of the driver is that he or she has
been asked to take a test. See, e.g., Green, supra.
   The district court saw this proceeding as requiring a straight-
forward application of the principles discussed above. It
acknowledged Travis’ arguments that he did not understand
that the chemical test and preliminary breath test were different
and that Smith misled him by saying that a driving under the
influence charge was a “worse offense” than a refusal to sub-
mit to a chemical test, but found these arguments were legally
irrelevant. In the district court’s view, the only relevant ques-
tions were whether Travis was asked to take a test and whether
he refused. Because the district court found that the answer to
both of those questions was yes, it affirmed the revocation of
Travis’ license.
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                         TRAVIS v. LAHM
                        Cite as 306 Neb. 418

   Travis argues that this case is not as simple as the district
court believed it to be. He argues that under several of our
prior cases, even if Travis understood that Smith asked him
to take a test and he refused, no refusal occurred because the
information Smith provided was ambiguous or misleading. We
turn now to the cases upon which Travis relies.
   The first cases Travis relies on are Smith v. State, 248 Neb.
360, 535 N.W.2d 694 (1995) (superseded by statute as stated
in Davis v. Wimes, 263 Neb. 504, 641 N.W.2d 37 (2002)), and
Perrine v. State, 249 Neb. 518, 544 N.W.2d 364 (1996) (super-
seded by statute). Under a statute in existence at the time of
these cases, upon requesting a driver to submit to a chemical
test, an arresting officer was required to inform the arrestee of
the consequences of both refusing and failing a chemical test.
In Smith and Perrine, however, the arresting officer failed to
advise the driver of all such consequences. Because the statute
made such an advisement mandatory, we held that even though
the driver in Smith failed the test and the driver in Perrine
refused it, their licenses could not be revoked.
   We do not believe Smith or Perrine applies here. We held
that revocation was not proper in those cases because the offi-
cer failed to provide information he was obligated by statute to
provide. Travis does not argue Smith failed to provide statuto-
rily required advice here, and there is no indication Smith did.
The statute requiring the officer to advise the driver of various
consequences of refusing or failing a chemical test has since
been amended. See State v. Turner, 263 Neb. 896, 644 N.W.2d
147 (2002). The current version of the statute requires only that
an arrestee be advised that “refusal to submit to such test or
tests is a separate crime for which the person may be charged.”
§ 60-6,197(5). Smith’s testimony suggests he advised Travis
that refusal was a separate crime, and Travis makes no argu-
ment otherwise.
   The other case Travis relies upon is Wiseman v. Sullivan,
190 Neb. 724, 211 N.W.2d 906 (1973). In that license revo-
cation proceeding, after the driver was arrested on suspicion
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                         TRAVIS v. LAHM
                        Cite as 306 Neb. 418

of driving while intoxicated, an officer interspersed accurate
information concerning the consequences of refusing a chemi-
cal test with “Miranda type” warnings which included a state-
ment that the driver had the right to have an attorney present
during “any part of my investigation.” Id. at 727, 211 N.W.2d
at 909 (emphasis omitted). The officer then asked the arrestee
if he wished to contact an attorney before finally asking if
he would submit to a chemical test of his breath. The driver
responded that he wanted to consult with an attorney. We held
that, under the circumstances, the driver’s failure to agree to
the test did not amount to a refusal. We reasoned that only a
person trained in law and familiar with both the Miranda doc-
trine and the implied consent statute would reasonably under-
stand that he had no right to consult with counsel concerning
the breath test.
   We find Travis’ reliance on Wiseman unavailing. Our hold-
ing in Wiseman was limited to cases in which a driver is asked
to submit to a chemical test but also given a Miranda warn-
ing that reasonably leads the driver to believe he or she has
the right to consult with an attorney regarding the test and
the driver does so. See Wiseman, supra. In a later case, we
recognized that our holding in Wiseman was narrow. See State
v. Richter, 240 Neb. 913, 917, 485 N.W.2d 201, 204 (1992)
(“[o]ur cases have clearly held that unless there has been a
commingling of the Miranda warning and the implied consent
statute, a defendant’s lack of understanding of the conse-
quences of a refusal to take a chemical test is not a defense”)
(citing Wiseman, supra).
   Not only does the holding of Wiseman not assist Travis,
neither does its reasoning. The driver in Wiseman was reason-
ably led to believe that he had a legal right to consult with an
attorney and merely asked to do so. In that sense, the driver
was not so much refusing a test as electing to first talk to an
attorney, an option which was presented as legally permit-
ted. Travis, on the other hand, claims he declined to take
the chemical test because Smith told him that driving under
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          Nebraska Supreme Court Advance Sheets
                   306 Nebraska Reports
                          TRAVIS v. LAHM
                         Cite as 306 Neb. 418

the influence was a “worse offense” than refusing the test.
Even assuming that testimony is true and Smith’s testimony to
the contrary is not, it does not establish that Travis was led to
believe that he could choose to decline the test without legal
consequence or that he was doing something other than declin-
ing to submit to the test. At best, Travis’ testimony would
show that he did not submit to the chemical test because he
believed declining the test was a less serious offense. Unlike
the facts in Wiseman, we see no basis to say that this was not
a refusal for purposes of the statute.
   With respect to Travis’ contention that Smith provided him
with misleading information and that he refused to submit
to the test in reliance on that information, we are aware of
cases in which courts have held that it is a violation of the
Due Process Clause of the U.S. Constitution for an officer to
provide misleading information regarding the consequences of
taking or failing to take a blood alcohol test. See, e.g., State v.
Stade, 683 A.2d 164 (Me. 1996); Cates v. Director of Revenue
State of Mo., 943 S.W.2d 281 (Mo. App. 1997). But see State v.
Gifford, No. A-15-492, 2016 WL 2764727 (Neb. App. May 10,
2016) (selected for posting to court website) (holding that offi-
cer did not violate defendant’s due process rights by providing
inaccurate information prior to asking him to take chemical
test). But because Travis has never argued that his due process
rights were violated as a result of the misleading information
he alleges Smith provided to him, we do not consider that
issue here.
   Having rejected Travis’ argument that the district court
applied an incorrect legal framework, the only question that
remains is whether the district court’s decision that Travis
refused to take the test is supported by competent evidence.
We find that it is. Whatever Travis may not have under-
stood, he admitted that he was asked to submit to the chemi-
cal test and that he declined to take it. Indeed, as we have
noted, Travis identified specific reasons he refused to take
the test. Further, Travis points to no evidence that suggests
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         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                         TRAVIS v. LAHM
                        Cite as 306 Neb. 418

a reasonable person in Smith’s position would have believed
that he was not capable of refusal or that he did not understand
that he was asked to take a test.
   Smith’s report established a prima facie case that Travis
refused to take the chemical test. The district court’s decision
that Travis failed to carry his burden to show otherwise is sup-
ported by competent evidence.

                        CONCLUSION
  We find that the district court did not err in affirming the
order revoking Travis’ driver’s license. Accordingly, we affirm.
                                                    Affirmed.
