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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 competent evidence, and is neither arbitrary, capricious, nor unreasonable.

3. Judgments. Whether a decision conforms to law is by definition a question of law.

4. Judgments: Appeal and Error. An appellate court determines questions 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 revocation 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/25/2020 12:08 AM CDT
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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 refusing 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 relative 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 smoking 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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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 marijuana, 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 represented 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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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 acknowledged 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 saying 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 refusing 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 unwillingness 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 officer’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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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 relevant. 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 requirements 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 proceeding. Under Nebraska statute, any person who operates a motor 
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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 purpose of determining the concentration of alcohol or the presence 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 stating “(a) that the person was arrested as described in subsection (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 revocation 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 submitting 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 revocation 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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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 originally 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 understanding 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 straightforward 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 submit to a chemical test, but found these arguments were legally 

irrelevant. In the district court’s view, the only relevant questions 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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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) (superseded 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 officer failed to provide information he was obligated by statute to 

provide. Travis does not argue Smith failed to provide statutorily 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 argument otherwise.

The other case Travis relies upon is Wiseman v. Sullivan, 

190 Neb. 724, 211 N.W.2d 906 (1973). In that license revocation proceeding, after the driver was arrested on suspicion 
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of driving while intoxicated, an officer interspersed accurate 

information concerning the consequences of refusing a chemical test with “Miranda type” warnings which included a statement 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 doctrine and the implied consent statute would reasonably understand that he had no right to consult with counsel concerning 

the breath test.

We find Travis’ reliance on Wiseman unavailing. Our holding in Wiseman was limited to cases in which a driver is asked 

to submit to a chemical test but also given a Miranda warning 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 consequences 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 reasonably 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 permitted. Travis, on the other hand, claims he declined to take 

the chemical test because Smith told him that driving under 
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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 declining 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 officer 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 understood, he admitted that he was asked to submit to the chemical 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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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 supported 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.