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State v. Planck

Supreme Court of Nebraska

November 14, 2014

STATE OF NEBRASKA, APPELLEE,
v.
SARAH E. PLANCK, APPELLANT

Appeal from the District Court for Platte County, ROBERT R. STEINKE, Judge, on appeal thereto from the County Court for Platte County, FRANK J. SKORUPA, Judge.

Page 113

Nathan J. Sohriakoff, Deputy Platte County Public Defender, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 114

[289 Neb. 511] Cassel, J.

INTRODUCTION

Sarah E. Planck appeals from a district court judgment affirming her county court conviction and sentence for driving while her motor vehicle operator's license was administratively revoked " on points." She focuses on the trial court's refusal to give an instruction on entrapment by estoppel. To support the defense, she pointed to a different court's earlier return of her operator's license following a period of impoundment as part of a sentence for reckless driving. Because this conduct did not amount to an affirmative representation that it was legal for her to drive, the trial court correctly refused the instruction and the district court correctly affirmed on appeal.

BACKGROUND

Nance County Impoundment for Reckless Driving

We first summarize the facts relating to Planck's earlier conviction for reckless driving, which conviction occurred on November 5, 2012, in the county court for Nance County. In connection with that conviction, the court impounded Planck's operator's license for 60 days, beginning November 8. Planck applied for a " work permit," and the court authorized Planck to drive between her house and her place of employment during the period of impoundment.

After the period of impoundment expired, Planck received her operator's license in the mail. Although Planck testified that it was accompanied by a " handwritten letter" from " Nance County," the letter was not offered in evidence. She did not testify regarding the exact date the license was [289 Neb. 512] returned; rather, she related the time to the expiration of the 60-day impoundment period, which she equated to January 7, 2013.

Administrative Revocation on Points

We next summarize the evidence regarding the administrative revocation of Planck's motor vehicle operator's license. The Nebraska Department of Motor Vehicles (DMV) received notice from the county court for Nance County of Planck's conviction and the impoundment of her license. A court's impoundment of a license is a separate process from the DMV's administrative revocation procedure. Due to the conviction, the DMV assessed Planck 5 points under Nebraska's point system.[1] Consequently, the records of the DMV showed that Planck had accumulated 12 or more points in a 2-year period, resulting in summary revocation of her operator's license.[2]

On November 7, 2012, the DMV mailed a letter to Planck stating that her license was revoked for 6 months, from November

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7 until May 7, 2013. The DMV sent the revocation letter to Planck's last known address, which was an address in Monroe, Nebraska. The letter was sent by first-class mail. It was not returned to the DMV as undelivered.

On November 26, 2012, the DMV issued a " License Pickup Order," directing the Platte County sheriff to retrieve Planck's operator's license and listing Planck's address in Monroe, which is located in Platte County. The pickup order was canceled in April 2013.

Platte County Arrest and Conviction for Driving Under Revocation

We now turn to the events leading to the conviction and sentence before us in the instant appeal. On March 22, 2013, an officer with the Columbus Police Department stopped Planck's [289 Neb. 513] vehicle for a traffic violation. After Planck produced her operator's license, the officer communicated with dispatch and was advised that Planck's operator's license was revoked. The officer arrested Planck, and the State subsequently charged her with driving under revocation.

The county court for Platte County conducted a jury trial. Planck testified that she thought she had a valid operator's license at the time of her arrest. She testified that she never " officially" received the letter from the DMV stating that her license had been revoked and that the night of her arrest was the first time she was informed of her license revocation. Planck testified that when the county court for Nance County impounded her license for 60 days, a police officer came to her house to pick up the license. And after Planck's " work permit" expired, she received her operator's license in the mail at her address in Monroe along with a handwritten letter from " Nance County." Planck thought all of her driving privileges had been reinstated when her license was returned to her.

Planck testified that she would not have been driving if she knew her license was revoked. She did not recall whether the letter from Nance County stated that it was legal for her to drive. Planck testified that neither the DMV nor Nance County affirmatively communicated to her that it was legal for her to drive. But she also testified that Nance County never told her she could not drive and that she was led to believe she was free to resume driving when she received her license in the mail. Planck thought that the court had the authority to return her license and allow her to drive.

Defense counsel offered three alternative proposed jury instructions concerning entrapment by estoppel. The county court refused to give ...


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