Jordan D. Klug v. Nebraska Department of Motor Vehicle

Jordan D. Klug appeals a district court's order affirming

the lifetime revocation by the Nebraska Department of Motor

Vehicles (DMV) of his commercial driver's license (CDL).

The revocation was based on a Kansas administrative license

proceeding and a South Dakota criminal conviction for driving

under the influence of alcohol. For the reasons discussed

below, we affirm the judgment of the district court.

SCOPE OF REVIEW

[1] An appellate court's review of a district court's review of

a decision of the director of the Department of Motor Vehicles

is de novo on the record. Strong v. Neth, 267 Neb. 523, 676

N.W.2d 15 (2004).

[2] Statutory interpretation is a question of law that an

appellate court resolves independently of the trial court. DMK

Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013).

FACTS

On January 19, 2010, Klug was administratively adjudicated

to have committed the offense of "Driving Under Influence-

1st” in the State of Kansas. Klug was not criminally convicted

of driving under the influence in this administrative proceeding,

but instead completed a diversion program. On September

23, 2013, Klug was convicted in the Circuit Court of South

Dakota of "Driving Under Influence-1st.” On September 27,

the DMV revoked Klug's CDL for life pursuant to Neb. Rev.

Stat. § 60-4,168 (Cum. Supp. 2012).

Klug appealed the DMV's revocation to the district court

pursuant to Neb. Rev. Stat. § 60-4,105 (Reissue 2010). He

contended that the Kansas and South Dakota offenses were

not "included” in § 60-4,168 and therefore did not provide a

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KLUG v. NEBRASKA DEPT. OF MOTOR VEHICLES

Cite as 291 Neb. 235

basis for the DMV to revoke his CDL. Instead, he asserted

that § 60-4,168 referred specifically to the Nebraska statutes

for driving under the influence of alcohol—Neb. Rev.

Stat. §§ 60-6,196 (Reissue 2010) and 60-6,197 (Cum. Supp.

2014)—and therefore did not include out-of-state convictions

for driving under the influence of alcohol.

The district court rejected Klug's argument. It found that

the phrase "'in this or any other state'” in § 60-4,168(1)

was intended by the Legislature to include all driving under

the influence of alcohol convictions, including those which

occurred in another state that are equivalent to a violation of

driving under the influence in § 60-6,196 or § 60-6,197. The

court determined that revoking Klug's CDL was proper pursuant

to the statutory objective of the applicable statutes. Klug

timely appealed.

ASSIGNMENT OF ERROR

Klug assigns as error the district court's finding that the

Kansas administrative license revocation and the South Dakota

conviction for driving under the influence of alcohol were

offenses included in § 60-4,168(1)(a) and therefore provided a

basis to revoke his CDL.

ANALYSIS

The issue is whether out-of-state convictions for driving

under the influence of alcohol are included in the provisions

of § 60-4,168 pertaining to the revocation of CDL's. At all

times relevant to this case, § 60-4,168 provided:

(1) Except as provided in subsections (2) and (3) of

this section, a person shall be disqualified from driving

a commercial motor vehicle for one year upon his or her

first conviction, after April 1, 1992, in this or any other

state for:

(a) Driving a commercial motor vehicle in violation

of section 60-6,196 or 60-6,197 or under the influence

of a controlled substance or, beginning September 30,

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2005, driving any motor vehicle in violation of section

60-6,196 or 60-6,197 or under the influence of a controlled

substance;

. . . .

(3) A person shall be disqualified from driving a commercial

motor vehicle for life if, after April 1, 1992, he

or she:

(a) Is convicted of or administratively determined to

have committed a second or subsequent violation of any

of the offenses described in subsection (1) of this section

or any combination of those offenses arising from two or

more separate incidents; or

. . . .

(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

administrative tribunal . . . regardless of whether or not

the penalty is rebated, suspended, or probated.

(Emphasis supplied.)

It is not disputed that both Klug's Kansas administrative

license proceeding and his South Dakota criminal conviction

are "conviction[s]” within the meaning of § 60-4,168(7).

However, Klug argues (1) that the district court erred in finding

those convictions were included under § 60-4,168 and (2)

that the out-of-state convictions do not fit into the statutory

scheme. He asserts that whereas § 60-4,168(1)(a) refers generally

to controlled substances ("under the influence of a controlled

substance”), it refers specifically to Nebraska statutes

regarding driving under the influence of alcohol ("[d]riving

a commercial motor vehicle in violation of section 60-6,196

or 60-6,197”). Klug therefore claims that § 60-4,168 includes

out-of-state convictions for driving under the influence of a

controlled substance, but not out-of-state convictions for driving

under the influence of alcohol.

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Klug was not convicted under nor did he suffer a loss of

license pursuant to § 60-6,196 or § 60-6,197, but, rather, his

offenses were pursuant to South Dakota and Kansas statutes

for driving under the influence of alcohol. Consequently, he

contends that his CDL should not have been revoked.

[3] In discerning the meaning of a statute, a court must

determine and give effect to the purpose and intent of

the Legislature as ascertained from the entire language of

the statute considered in its plain, ordinary, and popular

sense, as it is the court's duty to discover, if possible, the

Legislature's intent from the language of the statute itself.

Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d

703 (2013). Section 60-4,168(1) expressly provides that a

person shall be disqualified from driving a commercial motor

vehicle upon his or her conviction "in this or any other

state” for all violations listed in subsections (a) through

(f). Although § 60-4,168(1)(a) identifies §§ 60-6,196 and

60-6,197 specifically, we conclude this preliminary phrase

unambiguously demonstrates that the Legislature intended to

include their equivalent violations in other states for driving

under the influence of alcohol.

The exclusion of out-of-state convictions from § 60-4,168

would defeat the purpose of the statute. If the language is condensed

to its rule pertaining to driving under the influence of

alcohol, it reads:

[A] person shall be disqualified from driving a commercial

motor vehicle for one year upon his or her first conviction,

after April 1, 1992, in this or any other state for:

. . . [d]riving a commercial motor vehicle in violation

of section 60-6,196 or 60-6,197 or . . .

. . . A person shall be disqualified from driving a commercial

motor vehicle for life if . . . he or she:

(a) Is convicted of or administratively determined to

have committed a second or subsequent violation of any

of the offenses described in subsection (1) of this section

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or any combination of those offenses arising from two or

more separate incidents[.]

See § 60-4,168(1)(a) and (3)(a) (emphasis supplied).

It is not a reasonable statutory interpretation to conclude

that for a person to be convicted in "any other state,” such

person must be convicted of the specific Nebraska offenses

for driving under the influence of alcohol. Consequently,

the interpretation Klug offers cannot be what the Legislature

intended. Both §§ 60-6,196 and 60-6,197 include prior

out-of-state convictions for driving under the influence of

alcohol in their sentencing framework. See Neb. Rev. Stat.

§ 60-6,197.02(1)(a)(i)(C) (Cum. Supp. 2014). It would be

unreasonable to consider a defendant's out-of-state convictions

under §§ 60-6,196 and 60-6,197 for criminal sentencing

purposes, but exclude them under § 60-4,168 to determine

whether to revoke a driver's CDL based on convictions under

those statutes.

[4] Klug's interpretation is contrary to the purpose of

§ 60-4,168. When construing a statute, an appellate court must

look to the statute's purpose and give to the statute a reasonable

construction which best achieves that purpose, rather than

a construction which would defeat it. TracFone Wireless v.

Nebraska Pub. Serv. Comm., 279 Neb. 426, 778 N.W.2d 452

(2010). The purpose of § 60-4,168 is

to implement the requirements mandated by the federal

Commercial Motor Vehicle Safety Act of 1986, 49

U.S.C. 31100 et seq., the federal Motor Carrier Safety

Improvement Act of 1999, Public Law 106-159, section

1012 of the federal Uniting and Strengthening America

by Providing Appropriate Tools Required to Intercept and

Obstruct Terrorism Act of 2001, USA PATRIOT Act, 49

U.S.C. 5103a, and federal regulations and to reduce or

prevent commercial motor vehicle accidents, fatalities,

and injuries by: (1) Permitting drivers to hold only one

operator's license; (2) disqualifying drivers for specified

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offenses and serious traffic violations; and (3) strengthening

licensing and testing standards.

Neb. Rev. Stat. § 60-4,132 (Cum. Supp. 2012).

Thus, the purpose of the applicable statute is to reduce and

prevent motor vehicle accidents and to comply with the mandates

of federal law, including federal regulations, by disqualifying

drivers for specific offenses and serious traffic violations.

An interpretation of the statute that excludes out-of-state

convictions for driving under the influence of alcohol would

clearly defeat this purpose.

The State cites to various federal regulations demonstrating

that states are required to disqualify commercial drivers

who have been convicted of driving under the influence. One

such regulation pertaining to state compliance with the federal

CDL program mandates that states take action against a

person required to have a CDL by disqualifying the person

"who is convicted of an offense or offenses necessitating disqualification

under § 383.51 of this subchapter.” 49 C.F.R.

§ 384.231(b)(2) (2014). Table 1 of 49 C.F.R. § 383.51 (2014)

provides that one such offense is being convicted of operating

a motor vehicle while "[b]eing under the influence of alcohol

as prescribed by State law.” As explained above, Nebraska law

contemplates out-of-state convictions for driving under the

influence of alcohol. See § 60-6,197.02(1)(a)(i)(C). Therefore,

compliance with federal regulations requires the State to take

action against CDL holders who have been convicted of driving

under the influence of alcohol.

We conclude that an interpretation of § 60-4,168(1) that

applies only the portion of subsection (a) pertaining to controlled

substances but excludes convictions in other states for

driving under the influence of alcohol would not be sensible

given the broader policies behind the statute. One can easily

recognize the reasons for this. If the overall goal of § 60-4,168

is to promote commercial vehicle motor safety, excluding

convictions for out-of-state driving under the influence of

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alcohol from the DMV's decisionmaking process for CDL

revocation would clearly undermine that purpose.

[5] Klug's argument is based solely on the language in

§ 60-4,168 that refers generally to convictions for driving

under the influence of controlled substances but refers to specific

statutes for driving under the influence of alcohol. Klug

argues, "It would appear that for whatever reason, driving

under the influence of alcohol was to be treated differently

than the other offenses with regard to out-of-state convictions

. . . .” Brief for appellant at 10. We disagree. It is not within

the province of the courts to read a meaning into a statute

that is not there, nor to read anything direct and plain out

of a statute. State v. Burlison, 255 Neb. 190, 583 N.W.2d 31

(1998). Both the purpose and policy behind the statute guide

our conclusion.

For the reasons stated above, we affirm the judgment of the

district court.



Affirmed.