Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/11/2018 08:08 AM CDT




                                                         - 328 -
                                Nebraska Court of A ppeals A dvance Sheets
                                     26 Nebraska A ppellate R eports
                                                   STATE v. MOODY
                                                Cite as 26 Neb. App. 328




                                        State of Nebraska, appellee, v.
                                          James L. Moody, appellant.
                                                     ___ N.W.2d ___

                                        Filed September 11, 2018.   No. A-17-969.

                1.	 Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
                    tions of law.
                2.	 Evidence: Appeal and Error. On a question of law, an appellate court
                    reaches a conclusion independent of the court below.
                3.	 Double Jeopardy. The Double Jeopardy Clause protects against three
                    distinct abuses: (1) a second prosecution for the same offense after
                    acquittal, (2) a second prosecution for the same offense after conviction,
                    and (3) multiple punishments for the same offense.
                4.	 Administrative Law: Motor Vehicles: Licenses and Permits:
                    Revocation: Double Jeopardy: Legislature: Intent. In analyzing
                    whether administrative license revocation for driving under the influ-
                    ence constitutes punishment for purposes of double jeopardy, the court
                    must inquire (1) whether the Legislature intended the statutory sanction
                    to be criminal or civil and (2) whether the statutory sanction is so puni-
                    tive in purpose or effect as to transform what was clearly intended as a
                    civil sanction into a criminal one.
                5.	 Statutes: Legislature: Intent. Whether the Legislature intended a civil
                    or criminal sanction is a matter of statutory construction.
                6.	 Administrative Law: Motor Vehicles: Licenses and Permits:
                    Revocation: Legislature: Intent. The Legislature intended administra-
                    tive license revocation to be a civil sanction.
                7.	 Statutes: Legislature: Intent. In determining whether the Legislature
                    intended a statute to establish civil or criminal proceedings, the lan-
                    guage used by the legislators, on the floor and in the statute, is not
                    dispositive.

                 Appeal from the District Court for Scotts Bluff County,
               Leo P. Dobrovolny, Judge, on appeal thereto from the County
                              - 329 -
         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. MOODY
                      Cite as 26 Neb. App. 328

Court for Scotts Bluff County, K ris D. M ickey, Judge.
Judgment of District Court affirmed.
  Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
  Pirtle, R iedmann, and Welch, Judges.
  Pirtle, Judge.
                      I. INTRODUCTION
   James L. Moody was charged with driving under the influ-
ence of alcohol, and he filed a plea in bar which was over-
ruled by the county court for Scotts Bluff County. He appealed
to the district court for Scotts Bluff County which affirmed
the county court’s ruling. He argues on appeal that recent
changes to the Nebraska Revised Statutes tie the administra-
tive license revocation (ALR) procedure more closely to the
criminal procedure, altering the nature of the sanctions from
civil and nonpunitive to criminal sanctions which are intended
to be punitive. He requests that we reverse, with directions to
dismiss the criminal complaint, because he has already been
punished in the ALR proceeding and any successive criminal
action would violate the double jeopardy clause. For the rea-
sons that follow, we affirm.
                     II. BACKGROUND
   On November 4, 2016, Moody was charged by complaint
with one count of driving under the influence, in violation of
Neb. Rev. Stat. § 60-6,196 (Reissue 2010).
   An ALR hearing was held on November 29, 2016, and evi-
dence was presented that on or about October 29, Moody was
driving and his car was stopped at a safety checkpoint. He was
detained and arrested on suspicion of driving under the influ-
ence of alcohol. The report prepared by the state trooper who
stopped Moody was presented as evidence. The report indi-
cated that Moody had bloodshot, watery eyes and emitted “the
                              - 330 -
         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. MOODY
                      Cite as 26 Neb. App. 328

odor” of alcohol. The trooper conducted three field sobriety
tests which provided evidence of probable intoxication, and
the preliminary breath test confirmed the presence of alcohol
in Moody’s system. A chemical test registered at .093 of a
gram of alcohol per 210 liters of breath, which is above the
legal limit of .08 of a gram of alcohol per 210 liters of breath.
The hearing officer recommended that Moody’s license be
revoked. The recommendation was adopted by the director
of the Department of Motor Vehicles (DMV), and Moody’s
license was revoked for a period of 180 days.
   Moody filed a plea in bar asserting that he had been tried
by the DMV on substantially the same charge as the crime
charged in the complaint and that his conviction by the DMV
put him in jeopardy for the same offense, twice, which is pro-
hibited by the Fifth Amendment to the U.S. Constitution and
article I, § 12, of the Nebraska Constitution. At the hearing
on the plea in bar on December 28, 2016, the court received
exhibits which contained the complaint in his case and the
finding of facts by the DMV. The county court overruled the
plea in bar.
   Moody appealed the denial of his plea in bar to the district
court. The district court received the bill of exceptions from
the county court and a transcript of the proceedings from the
ALR hearing. The district court affirmed the decision of the
county court. Moody timely appealed.

                III. ASSIGNMENTS OF ERROR
   Moody asserts the district court erred in affirming the county
court’s ruling that the ALR was not punitive and that the dou-
ble jeopardy clause was not applicable.

                 IV. STANDARD OF REVIEW
   [1,2] Issues regarding the grant or denial of a plea in bar
are questions of law. State v. Leon-Simaj, 300 Neb. 317, 913
N.W.2d 722 (2018). On a question of law, an appellate court
reaches a conclusion independent of the court below. Id.
                              - 331 -
         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. MOODY
                      Cite as 26 Neb. App. 328

                          V. ANALYSIS
   Moody asserts the ALR process has become punitive and
has lost its character as a civil remedial action. He argues that
the consequences of the administrative procedure have been
increased and are now intertwined with a criminal proceeding;
thus, he argues, subsequent prosecution in a criminal court
should be barred by the Double Jeopardy Clause of the Fifth
Amendment to the U.S. Constitution. The State disagrees and
argues that the sanctions imposed are civil in nature and that,
therefore, double jeopardy is not implicated.
   [3] The Double Jeopardy Clause protects against three dis-
tinct abuses: (1) a second prosecution for the same offense
after acquittal, (2) a second prosecution for the same offense
after conviction, and (3) multiple punishments for the same
offense. State v. Arterburn, 276 Neb. 47, 751 N.W.2d 157
(2008). The protection provided by the double jeopardy clause
of the Nebraska Constitution is coextensive with that provided
by the U.S. Constitution. See State v. Howell, 254 Neb. 247,
575 N.W.2d 861 (1998).
   In State v. Howell, supra, the Nebraska Supreme Court
addressed the question of whether the administrative revoca-
tion of a driver’s license for refusal to submit to a chemical
test constituted punishment such that any subsequent prosecu-
tion put the offender twice in jeopardy. Steven Howell was
arrested and charged with refusal to submit to a chemical
test and with driving under the influence. His driver’s license
was administratively revoked by the DMV. After the revoca-
tion, he filed a plea in bar alleging that criminal prosecu-
tion for refusal to submit to a chemical test and for driving
under the influence placed him twice in jeopardy for the
same offense. The county court denied his plea in bar, and he
appealed to the district court. The district court affirmed the
county court’s decision, and Howell appealed to the Nebraska
Supreme Court.
   The Nebraska Supreme Court affirmed the district court’s
decision, holding that the administrative revocation of a
                              - 332 -
         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. MOODY
                      Cite as 26 Neb. App. 328

person’s driver’s license for refusing to submit to a chemical
test was not “‘punishment’” that could raise a double jeopardy
bar to a criminal prosecution. State v. Howell, 254 Neb. at 250,
575 N.W.2d at 864. The court applied the analysis of multiple
punishments under the Double Jeopardy Clause as set out in
United States v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L.
Ed. 2d 742 (1980), supplemented by Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963),
and reaffirmed in Hudson v. United States, 522 U.S. 93, 118
S. Ct. 488, 139 L. Ed. 2d 450 (1997). In State v. Howell, the
Nebraska Supreme Court referred to the analysis as the “two-
part Kennedy-Ward analysis, as applied in Hudson.” 254 Neb.
at 251, 575 N.W.2d at 865.
   [4,5] In analyzing whether an ALR for driving under the
influence constitutes punishment for purposes of double jeop-
ardy, the court must inquire (1) whether the Legislature intended
the statutory sanction to be criminal or civil and (2) whether
the statutory sanction is so punitive in purpose or effect as to
transform what was clearly intended as a civil sanction into a
criminal one. See State v. Howell, supra. The Double Jeopardy
Clause protects against the imposition of multiple criminal
punishments for the same offense. State v. Arterburn, supra,
citing Hudson v. United States, supra. It does not prohibit the
imposition of a civil sanction and a criminal punishment for the
same act. State v. Arterburn, supra. Whether the Legislature
intended a civil or criminal sanction is a matter of statutory
construction. Id.
                     1. Legislative Intent
  We first determine whether the Legislature intended the
sanction of license revocation to be civil in nature. If so, we
ordinarily defer to the Legislature’s stated intent. See State v.
Arterburn, 276 Neb. 47, 751 N.W.2d 157 (2008).
  Neb. Rev. Stat. § 60-498.01(1) (Cum. Supp. 2016) states:
     Because persons who drive while under the influence of
     alcohol present a hazard to the health and safety of all
                              - 333 -
         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. MOODY
                      Cite as 26 Neb. App. 328

      persons using the highways, a procedure is needed for
      the swift and certain revocation of the operator’s license
      of any person who has shown himself or herself to be a
      health and safety hazard (a) by driving with an excessive
      concentration of alcohol in his or her body or (b) by driv-
      ing while under the influence of alcohol.
   [6] In State v. Howell, 254 Neb. 247, 253, 575 N.W.2d 861,
866 (1998), the Nebraska Supreme Court considered this exact
language, then codified in Neb. Rev. Stat. § 60-6,205(1) (Cum.
Supp. 1996), and concluded, “This language clearly states that
the Legislature intended [ALR] to protect the public from the
health and safety hazards posed by drivers who are under the
influence of alcohol. Thus, the Legislature intended to create a
civil sanction.”
   Moody asserts the increase in the revocation period from 90
to 180 days and the decision to intertwine the administrative
and criminal proceedings are proof that the ALR procedure
is now punitive. Moody refers to one legislator’s remark dur-
ing a floor debate that he wanted to “‘send a message,’” brief
for appellant at 6, as indicative of the Legislature’s desire
to impose a punishment, which in turn should be considered
when determining whether § 60-498.01 is civil or criminal.
Moody also notes that the 180-day suspension provided for in
Neb. Rev. Stat. § 60-498.02(1)(b) (Cum. Supp. 2018) is the
same period of revocation for a person who is convicted under
Neb. Rev. Stat. § 60-6,197.03(1) (Cum. Supp. 2016) for driv-
ing under the influence.
   [7] We note that the Nebraska Supreme Court has stated
that the language used by legislators, on the floor and in the
statute, is not dispositive. State v. Howell, supra. See State
v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996). In State
v. Howell, supra, and State v. Arterburn, supra, the Nebraska
Supreme Court considered whether revocations for a period of
1 year were criminal sanctions or civil sanctions—justified by
the need to protect the public health and safety. These cases
involved revocation of a driver’s license for refusal to submit
                               - 334 -
          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. MOODY
                       Cite as 26 Neb. App. 328

to a chemical test and revocation of a commercial driver’s
license for driving under the influence of alcohol, respectively.
The same set of factors was applied, and the court concluded,
in both cases, that the Legislature intended ALR to be a civil
sanction and that the sanctions were not so punitive in pur-
pose or effect as to negate the Legislature’s intent. Thus, the
court found that the Double Jeopardy Clauses of the U.S.
and Nebraska Constitutions were not violated and that the
civil sanctions did not constitute multiple punishment for the
same offense.
   Both of those cases, as well as this case, involve the revo-
cation of a driver’s license for the purpose of protecting the
health and safety of the public following an alcohol-related
offense which was alleged to have occurred on the roads in
this state. Even though the period of revocation has increased
from 90 to 180 days, it is still not as long as the 1-year revoca-
tion periods in Howell and Arterburn. In this case, there is a
legitimate basis for concluding that an ALR can still be con-
sidered a civil sanction, even though the period of revocation
has increased.
   Moody asserts the Legislature “expressed its intent that the
ALR scheme be criminal when it tied a Motion for Discovery
in the ALR proceeding and treated it as a request for discovery
in the criminal proceeding.” Brief for appellant at 8. Section
60-498.01(9) provides, in part, “Any motion for discovery
filed by the petitioner shall entitle the prosecutor to receive
full statutory discovery from the petitioner upon a prosecutor’s
request to the relevant court pursuant to section 29-1912 in any
criminal proceeding arising from the same arrest.” This provi-
sion is a procedural mechanism for regulating discovery and
does not have any bearing on the determination regarding the
civil or criminal nature of the sanction.

               2. Punitive in Purpose or Effect
   Having determined that the Legislature intended an ALR for
driving under the influence to be a civil sanction, we examine
                               - 335 -
          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. MOODY
                       Cite as 26 Neb. App. 328

whether § 60-498.01 is so punitive in purpose or intent as to
negate the Legislature’s intent. See State v. Howell, 254 Neb.
247, 575 N.W.2d 861 (1998).
  We look to the seven factors set forth in Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d
644 (1963):
     Whether the sanction involves an affirmative disability
     or restraint, whether it has historically been regarded as
     a punishment[,] whether it comes into play only on a
     finding of scienter, whether its operation will promote
     the traditional aims of punishment—retribution and deter-
     rence, whether the behavior to which it applies is already
     a crime, whether an alternative purpose to which it may
     rationally be connected is assignable for it, and whether
     it appears excessive in relation to the alternative purpose
     assigned . . . .
See, also, Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488,
139 L. Ed. 2d 450 (1997); State v. Howell, 254 Neb. 247, 575
N.W.2d 861 (1998).

                    (a) Affirmative Disability
                           or Restraint
   We recognize that the loss of a driver’s license imposes a
sanction that a driver may not operate a vehicle for a 180-day
period. This sanction is not an affirmative disability or restraint,
as the term is normally understood. See State v. Arterburn, 276
Neb. 47, 751 N.W.2d 157 (2008).
   In State v. Arterburn, 276 Neb. at 55, 751 N.W.2d at 165, the
Nebraska Supreme Court referred to Hudson v. United States,
supra, in which the U.S. Supreme Court found that prohibit-
ing a person from participating in the banking industry was
not an affirmative disability or restraint, stating that the pro-
hibition was “‘“certainly nothing approaching the ‘infamous
punishment’ of imprisonment.”’” In Arterburn, the Nebraska
Supreme Court found that a 1-year revocation of a commer-
cial driver’s license compared more closely to prohibiting
                               - 336 -
          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. MOODY
                       Cite as 26 Neb. App. 328

a person from participating in the banking industry than to
the punishment of imprisonment. Thus, the court concluded
that an affirm­  ative disability or restraint was not present.
Following this reasoning, we conclude an affirmative disabil-
ity or restraint is not present in this case, involving a 180-day
revocation of a driver’s license.
                    (b) Historically Regarded
                         as Punishment
   As shown in previous decisions on this topic, State v.
Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996), and State v.
Howell, supra, an ALR has not traditionally been understood
to constitute punishment. State v. Arterburn, supra. A driver’s
license is a privilege and not a right, and the revocation of a
privilege is usually not considered punishment. See id. See,
also, Hudson v. United States, supra.
                          (c) Scienter
   The 180-day revocation does not come into play “only” on
a finding of scienter. The revocation applies regardless of the
offender’s state of mind.
                (d) Promotion of Punishment—
                  Retribution and Deterrence
   We recognize that the imposition of a 180-day revoca-
tion will deter others from emulating Moody’s conduct, a
traditional goal of criminal punishment; however, the mere
presence of this purpose is insufficient to render a sanction
criminal, as deterrence may serve civil as well as criminal
goals. See State v. Arterburn, supra, citing Hudson v. United
States, supra.
   As the U.S. Supreme Court noted in Hudson v. United
States, 522 U.S. at 102, “all civil [sanctions] have some deter-
rent effect.” What is most significant in the instant case is that
any deterrent purpose served by the ALR is secondary to its
primary purpose of protection of the public health and safety.
See State v. Howell, supra. See, also, State v. Arterburn, supra.
                              - 337 -
         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. MOODY
                      Cite as 26 Neb. App. 328

We conclude that the deterrent purposes do not render the
180-day revocation a criminal sanction.
   Moody also asserts the Legislature made it clear that the
ALR scheme is now punitive, because § 60-498.01(8)(d)
states, “Any person who petitions for an [ALR] hearing shall
not be eligible for an ignition interlock permit unless ordered
by the court at the time of sentencing for the related criminal
proceeding.” He argues that when the Legislature imposed the
additional sanction prohibiting the ignition interlock permit
until a sentencing order is issued, the administrative process
became a part of the related criminal action. He argues that
“[p]reventing the installation of a machine that prevents a
vehicle from starting if a person has consumed alcohol for
those who challenge a revocation appears to be excessive to
the alternatives.” Brief for appellant at 13. He argues that
“[i]f the goal is to make the roads safe, then preventing people
from driving [with an ignition interlock permit] appears to be
counterintuitive to [that] goal.” Id.
   While there are means by which the impact of the license
revocation process can be decreased, such as allowing those
who seek an ALR hearing to obtain an ignition interlock per-
mit, this is not the purpose of the process. The purpose of the
ALR is to ensure the health and safety of the public on the
roads by removing drivers who pose a threat to that safety. As
previously discussed, the relevant inquiry for double jeopardy
purposes is whether the ALR is so punitive in purpose as to
negate the Legislature’s intent. In cases involving the revoca-
tion of a driver’s license, Nebraska appellate courts have not
typically considered the person’s ability to obtain a work per-
mit or an ignition interlock permit in the assessment of whether
a sanction was civil or criminal, nonpunitive or punitive. See,
State v. Isham, 261 Neb. 690, 625 N.W.2d 511 (2001); State
v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998). The fact
that the Legislature has provided a mechanism by which some
individuals whose licenses have been revoked may obtain lim-
ited driving privileges in the event they choose not to contest
                               - 338 -
          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                          STATE v. MOODY
                       Cite as 26 Neb. App. 328

the ALR does not change the essential character of the revoca-
tion, which is nonpunitive.
                 (e) Behavior Is Already Crime
   The behavior to which ALR applies in this case is already a
crime, but this fact is insufficient to render the sanction crimi-
nally punitive, particularly in the double jeopardy context. See,
Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L.
Ed. 2d 450 (1997); State v. Howell, supra.
                    (f) Alternative Purpose
   Section 60-498.01 has an alternative, nonpunitive purpose
of protection of the public health and safety by revoking the
license of persons who drive while under the influence of alco-
hol because they have shown themselves to be a safety hazard.
Any deterrent purpose is merely secondary to the statute’s
stated, nonpunitive purpose.
                         (g) Excessive
    The nonpunitive purpose of § 60-498.01 is to protect the
public health and safety by revoking the license of persons who
drive while under the influence of alcohol, because they have
shown themselves to be a safety hazard. Revocation is justified
based on the offender’s willingness to engage in conduct that,
if continued, poses a danger to the public. In sum, there is very
little showing that a 180-day revocation is so punitive in pur-
pose or effect as to make the sanction criminal.
                     VI. CONCLUSION
   For the above-stated reasons, we affirm the district court’s
judgment which affirmed the judgment of the county court
overruling Moody’s plea in bar.
                                                   A ffirmed.
