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STATE v. MOODY

Cite as 26 Neb. App. 328

State of Nebraska, appellee, v.

James L. Moody, appella

___ 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 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 Cou

Nebraska Supreme Court Online Library

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

09/11/2018 08:08 AM CDT
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Cite as 26 Neb. App. 328

Court for Scotts Bluff County, Kris D. Mickey, Jud

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, Riedmann, and Welch, Ju

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 
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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 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 double 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.
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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 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. 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 revocation 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 with 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 the Nebraska 

Supreme Court.

The Nebraska Supreme Court affirmed the district court’s 

decision, holding that the administrative revocation of a 
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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. MendozaMartinez, 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 “twopart 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 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. 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 In

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 
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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 driving 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 during 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 driving 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 
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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 purpose 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 revocation 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 revocation periods in Howell and Arterburn. In this case, there is a 

legitimate basis for concluding that an ALR can still be considered 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 provision 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 

Having determined that the Legislature intended an ALR for 

driving under the influence to be a civil sanction, we examine 
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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. MendozaMartinez, 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 deterrence, 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 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 ‘infamous 

punishment’ of imprisonment.”’” In Arterburn, the Nebraska 

Supreme Court found that a 1-year revocation of a commercial driver’s license compared more closely to prohibiting 
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a person from participating in the banking industry than to 

the punishment of imprisonment. Thus, the court concluded 

that an affirmative disability or restraint was not present. 

Following this reasoning, we conclude an affirmative disability 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 revocation 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 deterrent 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. 
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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 permit, 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 revocation of a driver’s license, Nebraska appellate courts have not 

typically considered the person’s ability to obtain a work permit 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 limited driving privileges in the event they choose not to contest 
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the ALR does not change the essential character of the revocation, 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 criminally 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 alcohol 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 purpose 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.

Affirmed