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State v. Moody

Court of Appeals of Nebraska

September 11, 2018

State of Nebraska, appellee,
v.
James L. Moody, appellant.

         1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions 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 influence 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 punitive 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 administrative 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 language 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 [26 Neb.App. 329] Court for Scotts Bluff County, Kris D. Mickey, Judge.

          Bell Island, of Island Law Office, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Pirtle, Riedmann, and Welch, Judges.

          PIRTLE, JUDGE.

         I. INTRODUCTION

         James L. Moody was charged with driving under the influence of alcohol, and he filed a plea in bar which was overruled 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 administrative 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 reasons 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 evidence 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 influence of alcohol. The report prepared by the state trooper who stopped Moody was presented as evidence. The report indicated that Moody had bloodshot, watery eyes and emitted "the [26 Neb.App. 330] 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 prohibited 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 ...


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