Opinion
No. 85-819.
Filed October 23, 1987.
1. Implied Consent: Miranda Rights: Blood, Breath, and Urine Tests. Miranda warnings are not required prior to an officer's request of a driver to submit to a chemical analysis under the Nebraska implied consent law. 2. Implied Consent: Right to Counsel: Blood, Breath, and Urine Tests. The driver of a vehicle is not entitled to consult with an attorney before submitting to a chemical test under Nebraska's implied consent law. 3. Constitutional Law: Implied Consent. Neb. Rev. Stat. § 39-669.16 (Reissue 1984) is not unconstitutionally vague or overbroad. 4. Implied Consent: Licenses and Permits: Revocation: Proof: Appeal and Error. In an appeal from an order of the director of the Department of Motor Vehicles revoking an operator's license under Nebraska's implied consent law, it is the licensee's burden to prove the invalidity of the revocation order. 5. Implied Consent: Blood, Breath, and Urine Tests. Neb. Rev. Stat. § 39-669.09 (Reissue 1984) does not require the officer to inform the person of his privilege to request an independent test.
Appeal from the District Court for Dawson County: HUGH STUART, Judge. Affirmed.
John S. Mingus of Mingus Mingus, for appellant.
Robert M. Spire, Attorney General, and Jill Gradwohl, for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, D.J., Retired.
This is an appeal from the order of the district court, affirming the order of the director of the Department of Motor Vehicles, revoking Wesley R. Heusman's motor vehicle operator's license under Nebraska's implied consent law.
In his brief to this court appellant asserts that Miranda warnings should have been read to him, that he had a right to counsel prior to deciding whether to submit to a chemical test, that the implied consent statutes are unconstitutional, that he should not have been required to bear the burden of proof, and that he was entitled to be advised of his right to have an independent test of his body fluids conducted by a physician of his choice.
We note first that counsel for appellant abandoned his brief at oral argument. It is therefore unclear whether any of the appellant's assignments of error were preserved. Without deciding this issue, we note further that each of the above questions has recently been examined and decided by this court in a manner inconsistent with the appellant's position.
In Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986), we reaffirmed our position that Miranda warnings are not required prior to a request to submit to a chemical analysis under the Nebraska implied consent law. We also reasserted holdings from prior cases that under the implied consent law a driver is not entitled to consult with an attorney before submitting to a chemical test.
Appellant's constitutional argument, that Neb. Rev. Stat. § 39-669.16 (Reissue 1984) is both vague and overbroad because it does not expressly define "reasonable," was also raised and rejected in Fulmer.
In Wietjes v. Jensen, 221 Neb. 579, 379 N.W.2d 734 (1986), and, additionally, in Mackey v. Director of Department of Motor Vehicles, 194 Neb. 707, 235 N.W.2d 394 (1975), we have held that the burden is on the appealing licensee to prove the invalidity of the revocation order.
Additionally, the appellant contends that the order of the district court should be reversed because no evidence was offered to indicate that an officer was present who was certified to operate the testing device. While this might present a defense to the criminal charge of driving while intoxicated, it does not constitute a justifiable, reasonable excuse for refusing to submit to the test.
Finally, in State v. Klingelhoefer, 222 Neb. 219, 382 N.W.2d 366 (1986), we reaffirmed our position that Neb. Rev. Stat. § 39-669.09 (Reissue 1984) does not require the officer to inform the person of his privilege to request an independent test.
For these reasons, the appellant's contentions are without merit, and the order of the district court is affirmed.
AFFIRMED.