State v. Arterburn

S tate of N ebraSka , appellaNt , v .
heath k. arterburN, appellee .
S tate of N ebraSka , appellaNt , v .
D aNIel J. S ouCIe , appellee .
S tate of N ebraSka , appellaNt , v .
erIC w. N eJezChleb , appellee .
S tate of N ebraSka , appellaNt , v .
paul r. S hafer , appellee .
75 n.W.2d 57
filed July 3, 2008. 	nos. s-07-037 through s-07-040.
. Statutes. statutory interpretation presents a question of law.
2. Judgments: Appeal and Error. on questions of law, a reviewing court has an
obligation to reach its own conclusions independent of those reached by the
lower courts.
3. Double Jeopardy. the double Jeopardy clause protects against three distinct
abuses: () 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. Statutes: Legislature: Intent. Whether the Legislature intended a civil or criminal
sanction is a matter of statutory construction.
5. Administrative Law: Statutes: Appeal and Error. the meaning and interpreta-
tion of statutes and regulations are questions of law for which an appellate court
has an obligation to reach an independent conclusion irrespective of the decision
made by the court below.
6. Constitutional Law: Statutes. it is the duty of a court to give a statute an inter-
pretation that meets constitutional requirements if it can reasonably be done.
7. Statutes: Intent. When construing a statute, a court must look at the statutory
objective to be accomplished, the problem to be remedied, or the purpose to
be served, and then place on the statute a reasonable construction which best
achieves the purpose of the statute, rather than a construction defeating the statu-
tory purpose.
8. Statutes: Legislature: Intent. the components of a series or collection of statutes
pertaining to a certain subject matter which are in pari materia may be conjunc-
tively considered and construed to determine the intent of the Legislature, so that
different provisions of the act are consistent, harmonious, and sensible.
appeals from the district court for adams county, S tepheN
r. I llINgworth, Judge, on appeal thereto from the county court
for adams county, J aCk r. ott, Judge. Judgments of district
court reversed, and causes remanded with directions.
state v. arterburn 	47
cite as 276 neb. 47
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

alyson 	keiser, 	deputy 	adams 	county 	attorney, 	for
appellant.
arthur 	r. 	Langvardt, 	of 	Langvardt 	& 	Valle, 	p.c., 	for
appellees.
heavICaN, 	C.J., 	wrIght , 	C oNNolly , 	gerrarD, 	S tephaN,
MCC orMaCk , and MIller -lerMaN, JJ.
wrIght , J.
i. nature of case
based upon administrative license revocations for driving
under the influence of alcohol, the director of the department of
motor Vehicles (dmV) disqualified heath k. arterburn, daniel
J. soucie, eric W. nejezchleb, and paul r. shafer (collectively
appellees) from holding commercial driver’s licenses for 
year pursuant to neb. rev. stat. § 60-4,68 (cum. supp. 2006).
appellees entered pleas in bar to criminal charges pending for
driving under the influence. the county court overruled the
pleas, but the district court reversed. it held that the disqualifica-
tion of appellees from holding commercial driver’s licenses was
a criminal proceeding and that further prosecution of appellees
for driving under the influence constituted double jeopardy. the
issue is whether the Legislature’s intent in enacting § 60-4,68
was to create a criminal or civil sanction.
ii. scope of reVieW
[,2] statutory interpretation presents a question of law. In re
Estate of Cooper, 275 neb. 297, 746 n.W.2d 653 (2008). on
questions of law, a reviewing court has an obligation to reach
its own conclusions independent of those reached by the lower
courts. State v. Howell, 254 neb. 247, 575 n.W.2d 86 (998).
iii. facts
appellees were arrested for driving under the influence of
alcohol. complaints were filed in the county court for adams
county, charging appellees with driving under the influence.
appellees were subjected to administrative license revocation
(aLr) proceedings that resulted in 90-day license revocations.
48 	276 nebraska reports

they appealed the revocations to the district court, which subse-
quently affirmed the revocations.
each appellee held a commercial driver’s license. following
the district court’s decision to affirm the revocations, they
received additional orders from the director disqualifying them
from holding commercial driver’s licenses for  year. in issuing
such orders, the director relied upon § 60-4,68.
after these disqualifications, appellees filed pleas in bar to
the driving under the influence charges pending in the adams
county court. they alleged that the state’s criminal prosecution
for driving under the influence placed them twice in jeopardy
for the same offense. the county court overruled the pleas in
bar. appellees appealed to the adams county district court,
which reversed. the district court concluded that the language
of § 60-4,68, when imposing the -year commercial driver’s
license disqualification, “constitute[d] a criminal conviction”
and, therefore, further prosecution of appellees for driving
under the influence constituted double jeopardy.
iV. assiGnments of error
the state argues that the district court erred () in holding
that the Legislature intended the aLr procedure for commercial
license holders to be criminal, (2) in finding that § 60-4,68(7)
makes an aLr a criminal conviction, and (3) in finding that the
pleas in bar should have been sustained.
V. anaLYsis
appellees argue that the disqualification of their commercial
driver’s licenses constituted criminal punishment and that their
subsequent prosecution for driving under the influence, which
emanates out of the same factual circumstances, is 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: () a second prosecution for the same offense after
acquittal, (2) a second prosecution for the same offense after
state v. arterburn 	49
cite as 276 neb. 47

conviction, and (3) multiple punishments for the same offense.
State v. Howell, supra.
section 60-4,68 provides:
() . . . [a] person shall be disqualified from driving a
commercial motor vehicle for one year upon his or her first
conviction . . . for:
(a) driving a commercial motor vehicle in violation of
section 60-6,96 or 60-6,97 . . . or, beginning september
30, 2005, driving any motor vehicle in violation of section
60-6,96 or 60-6,97 . . . .
. . . .
(7) for purposes of this section, conviction means an
unvacated adjudication of guilt, or a determination that a
person has violated or failed to comply with the law, in a
court of original jurisdiction or by an authorized adminis-
trative tribunal . . . .
We examine the above statute to determine whether the
Legislature intended the sanctions contained therein to be civil
or criminal.
in State v. Howell, 254 neb. 247, 575 n.W.2d 86 (998),
we 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 prosecution put
the offender twice in jeopardy. steven howell was arrested and
charged with refusal to submit to a chemical test and driving
under the influence. his driver’s license was administratively
revoked by the dmV. after the revocation, he filed a plea in
bar alleging that criminal prosecution 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 this court.
We affirmed the district court’s decision, holding that the
administrative revocation of a person’s driver’s license for refus-
ing to submit to a chemical test was not “punishment” that
could raise a double jeopardy bar to a criminal prosecution. We
applied the analysis of multiple punishments under the double
Jeopardy clause as set out in United States v. Ward, 448 u.s.
50 	276 nebraska reports

242, 00 s. ct. 2636, 65 L. ed. 2d 742 (980), supplemented by
Kennedy v. Mendoza-Martinez, 372 u.s. 44, 83 s. ct. 554, 9
L. ed. 2d 644 (963), and reaffirmed in Hudson v. United States,
522 u.s. 93, 8 s. ct. 488, 39 L. ed. 2d 450 (997). in State
v. Howell, 254 neb. at 25, 575 n.W.2d at 865, we referred to
the analysis as “the two-part Kennedy-Ward analysis, as applied
in Hudson.”
[4] in analyzing whether an aLr for driving under the influ-
ence constitutes punishment for purposes of double jeopardy, the
court must inquire () whether the Legislature intended the stat-
utory sanction to be criminal or civil and (2) whether the statu-
tory 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. see Hudson v. United States, supra. it does not
prohibit the imposition of a civil sanction and a criminal punish-
ment for the same act. see id. Whether the Legislature intended
a civil or criminal sanction is a matter of statutory construction.
see 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.’” State v.
Howell, 254 neb. at 252, 575 n.W.2d at 866, quoting Kansas
v. Hendricks, 52 u.s. 346, 7 s. ct. 2072, 38 L. ed. 2d
50 (997).
the Legislature specifically set forth its intent in enact-
ing § 60-4,68, indicating that the purpose of neb. rev. stat.
§§ 60-4,37 to 60-4,72 (reissue 2004 & supp. 2005) is to
implement federally mandated requirements and to reduce motor
vehicle accidents, fatalities, and injuries:
the purposes of sections 60-462.0 and 60-4,37 to
60-4,72 are to implement the requirements mandated by
the federal commercial motor Vehicle safety act of 986,
49 u.s.c. 300 et seq., the federal motor carrier safety
improvement act of 999, public Law 06-59, section
02 of the federal uniting and strengthening america
state v. arterburn 	5
cite as 276 neb. 47

by providing appropriate tools required to intercept and
obstruct terrorism act of 200, usa patriot act, 49
u.s.c. 503a, and federal regulations and to reduce or
prevent commercial motor vehicle accidents, fatalities,
and injuries by: () permitting drivers to hold only one
operator’s license; (2) disqualifying drivers for specified
offenses and serious traffic violations; and (3) strengthen-
ing licensing and testing standards.
neb. rev. stat. § 60-4,32 (cum. supp. 2006). implicit in this
language is the goal of protecting the public from accidents,
fatalities, and injuries involving commercial drivers who are
under the influence of alcohol or drugs.
the Legislature set forth a very similar goal when it enacted
the aLr statutes. see neb. rev. stat. § 60-6,205 (cum. supp.
2002), transferred to neb. rev. stat. § 60-498.0 (reissue 2004).
We have previously interpreted the aLr statutes, concluding
that the Legislature intended to create a civil sanction. see State
v. Howell, 254 neb. 247, 575 n.W.2d 86 (998). accordingly,
because the goal in § 60-4,68 is very similar to that of the aLr
statutes, there is strong evidence that the Legislature intended to
create a civil sanction.
nevertheless, appellees argue, and the district court found,
that the word “conviction” as defined in § 60-4,68(7) expressly
demonstrates that the Legislature intended disqualification for
commercial licensees to be a criminal sanction. appellees claim
that “conviction” means guilty of a criminal offense and that
because § 60-4,68(7) describes a decision of an “authorized
administrative tribunal” as a “conviction,” a subsequent pros-
ecution of appellees for driving under the influence constitutes
double jeopardy.
appellees’ argument fails to consider the intent of the com-
mercial driver’s license legislation. the Legislature’s explicit
intent is to reduce or prevent commercial motor vehicle acci-
dents, fatalities, and injuries. see § 60-4,32. the stated purpose
by the Legislature indicates that it intended a civil sanction.
however, the language used by the Legislature in a statute
is not always dispositive. see State v. Howell, supra. see, also,
Kansas v. Hendricks, 52 u.s. at 36 (stating that “a ‘civil
label is not always dispositive’”). a court must also look at the
52 	276 nebraska reports

structure and design of the statute to determine the Legislature’s
intent. the primary consideration in this regard is the procedural
mechanisms established by the Legislature to enforce the statute.
State v. Howell, supra, citing United States v. Ursery, 58 u.s.
267, 6 s. ct. 235, 35 L. ed. 2d 549 (996).
[5-7] in our review of § 60-4,68, we are guided by the fol-
lowing principles: the meaning and interpretation of statutes and
regulations are questions of law for which an appellate court has
an obligation to reach an independent conclusion irrespective of
the decision made by the court below. Betterman v. Department
of Motor Vehicles, 273 neb. 78, 728 n.W.2d 570 (2007). it is
the duty of a court to give a statute an interpretation that meets
constitutional requirements if it can reasonably be done. Hamit
v. Hamit, 27 neb. 659, 75 n.W.2d 52 (2006), citing State ex
rel. Stenberg v. Moore, 258 neb. 99, 602 n.W.2d 465 (999).
When construing a statute, a court must look at the statutory
objective to be accomplished, the problem to be remedied, or
the purpose to be served, and then place on the statute a reason-
able construction which best achieves the purpose of the statute,
rather than a construction defeating the statutory purpose. State
v. Vasquez, 27 neb. 906, 76 n.W.2d 443 (2006).
a review of the structure, design, and procedural mechanisms
to enforce § 60-4,68 reaffirms that the Legislature intended to
create a civil sanction. in commercial license disqualifications,
the director of the dmV, not a judge, revokes the license based
upon a “conviction” as defined in § 60-4,68(7). if the offender
is aggrieved by the final decision of the director, the party may
appeal to the district court. see neb. rev. stat. § 60-4,05
(reissue 2004) and § 60-4,70.
a disqualification under § 60-4,68 is distinct from a criminal
procedure. the burden of proof is a preponderance of the evi-
dence—not proof beyond a reasonable doubt. the district court
hears the appeal in equity. see § 60-4,05(3). the disqualifica-
tion may occur following a criminal conviction or an aLr. in
this instance, the disqualification was the result of an aLr by
the dmV. such aLr hearing has limited issues presented for
determination by the director.
in § 60-4,68(7), the phrase “authorized administrative tri-
bunal” implicitly references aLr proceedings. if the offender
state v. arterburn 	53
cite as 276 neb. 47

requests a hearing, the burden of proof is on the state to make
a prima facie case for revocation. State v. Howell, 254 neb.
247, 575 n.W.2d 86 (998), citing State v. Hansen, 249 neb.
77, 542 n.W.2d 424 (996). once a prima facie case is made,
the burden shifts to the offender, who must disprove the prima
facie case by a preponderance of the evidence to avoid revoca-
tion. State v. Howell, supra. this type of summary proceeding,
which shifts the burden of proof to the offender, is a distinctly
civil procedure. Id., citing United States v. Ursery, supra; U.S.
v. Imngren, 98 f.3d 8 (4th cir. 996); Ex parte Avilez, 929
s.W.2d 677 (tex. app. 996).
[8] a criminal trial and aLr proceedings serve different pur-
poses. the aLr statutes anticipate that the criminal proceeding
will be pursued, and the validity of the aLr may depend upon
the resolution of the criminal proceeding. see neb. rev. stat.
§ 60-498.02(4)(a) (reissue 2004). the components of a series
or collection of statutes pertaining to a certain subject matter
which are in pari materia may be conjunctively considered and
construed to determine the intent of the Legislature, so that
different provisions of the act are consistent, harmonious, and
sensible. Japp v. Papio-Missouri River NRD, 27 neb. 968, 76
n.W.2d 707 (2006).
in sum, the structure, design, and procedural mechanisms,
along with the Legislature’s specified purpose, lead us to con-
clude that the Legislature’s intent in enacting § 60-4,68 was to
create a civil sanction.
2. puNItIve IN purpoSe or effeCt
having determined that the Legislature intended a com-
mercial license revocation to be a civil sanction, we examine
whether § 60-4,68 is so punitive in purpose or effect as to
negate the Legislature’s intent. see State v. Howell, supra, cit-
ing Hudson v. United States, 522 u.s. 93, 8 s. ct. 488, 39
L. ed. 2d 450 (997). although the district court did not make
a specific finding of such and appellees do not argue such, we
nevertheless address this issue because it is relevant to our inter-
pretation of § 60-4,68.
We presume the sanction is civil unless appellees provide
the clearest proof that the statute is so punitive in its purpose
54 	276 nebraska reports

or effect as to negate the Legislature’s intent. see State v.
Howell, supra.
in analyzing whether the purpose or effect of the statute is
so punitive as to negate the Legislature’s intent, we look to the
seven factors set forth in Kennedy v. Mendoza-Martinez, 372
u.s. 44, 68-69, 83 s. ct. 554, 9 L. ed. 2d 644 (963):
Whether the sanction involves an affirmative disability or
restraint, whether it has historically been regarded as a pun-
ishment, whether it comes into play only on a finding of
scienter, whether its operation will promote the traditional
aims of punishment—retribution and deterrence, whether
the behavior to which it applies is already a crime, whether
an alternative purpose to which it may rationally be con-
nected is assignable for it, and whether it appears excessive
in relation to the alternative purpose assigned . . . .
see, also, Hudson v. United States, supra.
keeping in mind that these factors are “helpful” but “certainly
neither exhaustive nor dispositive,” United States v. Ward, 448
u.s. 242, 249, 00 s. ct. 2636, 65 L. ed. 2d 742 (980), and
that these factors “‘must be considered in relation to the statute
on its face,’” Hudson v. United States, 522 u.s. at 00, quoting
Kennedy v. Mendoza-Martinez, supra, we review each of the
seven factors below for the “‘clearest proof’” to override the
Legislature’s intent, see id.
(a) affirmative disability or restraint
although we recognize that the loss of a commercial driver’s
license imposes a sanction that the driver may not operate a
commercial vehicle for a -year period, this sanction is not an
affirmative disability or restraint, as the term is normally under-
stood. in Hudson v. United States, 522 u.s. at 04, the court
found that prohibiting a person from participating in the banking
industry was not an affirmative disability or restraint, stating that
the prohibition was “‘certainly nothing approaching the “infa-
mous punishment” of imprisonment.’” (Quoting Flemming v.
Nestor, 363 u.s. 603, 80 s. ct. 367, 4 L. ed. 2d 435 (960).)
accordingly, the -year revocation of a commercial license
compares more closely to prohibiting a person from participat-
ing in the banking industry than to the “infamous punishment”
state v. arterburn 	55
cite as 276 neb. 47

of imprisonment. We conclude that an affirmative disability or
restraint is not present.
(b) historically regarded as punishment
as shown by our previous decisions on this topic, State v.
Hansen, 249 neb. 77, 542 n.W.2d 424 (996), and State v.
Howell, 254 neb. 247, 575 n.W.2d 86 (998), an aLr has
not traditionally been understood to constitute punishment. a
commercial driver’s license is a privilege and not a right, and
because the revocation of a privilege is usually not considered
punishment, Hudson v. United States, 522 u.s. 93, 8 s. ct.
488, 39 L. ed. 2d 450 (997), we conclude that the revocation
of a commercial driver’s license is not considered punishment,
as it is merely the revocation of a privilege.
(c) scienter
the -year 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 the -year revocation will
deter others from emulating appellees’ conduct, a traditional
goal of criminal punishment; however, the mere presence of this
purpose is insufficient to render a sanction criminal, as deter-
rence may serve civil as well as criminal goals. see Hudson v.
United States, supra, citing United States v. Ursery, 58 u.s.
267, 6 s. ct. 235, 35 L. ed. 2d 549 (996). thus, although
the -year revocation deters others because it serves the statute’s
nonpunitive purpose of protecting the public from accidents,
fatalities, and injuries, and because any deterrent purpose it
has is merely secondary to its stated purpose, we conclude that
its deterrent purposes do not render the -year revocation a
criminal sanction.
(e) behavior already crime
the behavior to which the commercial license revocation
applies is already a crime.
56 	276 nebraska reports

(f) alternative purpose
as stated above, the statute in question has the alternative,
nonpunitive purpose of protecting the public from accidents,
fatalities, and injuries. any deterrent purpose is merely second-
ary to the statute’s stated, nonpunitive purpose.
(g) excessive
the statute’s nonpunitive purpose of protecting the public
from accidents, fatalities, and injuries is justified based on the
offender’s willingness to engage in conduct that, if continued,
poses a danger to the public. in sum, there simply is very little
showing, to say nothing of the “clearest proof” required, that a
-year revocation is so punitive in purpose or effect as to make
the sanction criminal.
Vi. concLusion
for the above-stated reasons, we reverse the district court’s
judgment and remand the cause to the district court with direc-
tions to affirm the judgment of the county court which overruled
appellees’ pleas in bar.
reverSeD aND reMaNDeD wIth DIreCtIoNS.
gerrarD, J., concurs in the result.
state v. arterburn 	57
cite as 276 neb. 47