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AGO Opinion 98031

Application of Motor Vehicle Implied Consent Laws to Minors
Opinion 98031

DATE: July 15, 1998

SUBJECT: Application of Motor Vehicle Implied Consent Laws to Minors




REQUESTED BY: Wesley Nespor, Greeley County Attorney




WRITTEN BY: Don Stenberg, Attorney General

James H. Spears, Assistant Attorney General




You have requested our opinion on the issue of whether

hospitals or medical personnel are authorized to draw blood from a

minor without parental consent or notification under Neb. Rev.

Stat. § 60-6,211.01 et. seq. The Nebraska Motor Vehicle Implied

Consent Laws found in both § 60-6,211 and in § 60-6,197 of the

Nebraska Revised Statutes clearly authorize hospitals and medical

personnel to draw blood from minors without either parental consent

or notification. However, it must also be mentioned that although

hospitals and medical personnel are legally authorized to draw

blood from minors without parental consent or notification, there

is no provision in the Nebraska Motor Vehicle Implied Consent Laws

which either requires or compels hospitals or medical personnel to

draw blood from a minor without parental consent or notification.




Section 60-6,211 et. seq. of the Nebraska Revised Statutes

provides for the so-called "Zero Tolerance" law in Nebraska. Under

Zero Tolerance, a person under the age of 21 may have his

or her license impounded by the State "[w]hen such person has a

concentration of two-hundredths of one gram or more by weight of

alcohol per one hundred milliliters of his or her blood but less

than [ten-hundredths of one gram or more by weight of alcohol per

one hundred milliliters of his or her blood]." Neb. Rev. Stat.

Ann. § 60-6,211.01(1)(a) (Michie 1997). The Zero Tolerance law

also clearly and unambiguously provides that:




Any person who operates or has in his or her actual

physical control a motor vehicle in this state shall be

deemed to have given his or her consent to submit to a

chemical test or tests of his or her blood or breath for

the purpose of determining the concentration of alcohol

in such blood or breath.


Neb. Rev. Stat. Ann. § 60-6,211.02(1) (Michie 1997). This language

is identical to the implied consent language found in Neb. Rev.

Stat. Ann. § 60-6,197 (1) (Michie 1997), with the only exception

being that the driver's urine may also be tested for the presence

of drugs or alcohol in § 60-6,197.




The Attorney General has previously stated in an opinion on

the issue of whether a minor may be required to submit to a blood

test under the statute which preceded § 60-6,197 that:




[i]f no exception is made in favor of minors, [criminal]

statutes are to be considered applicable to them. . . .

Therefore, it is our opinion that minors are included

within the category of those persons who are deemed to

have given their consent to submit to chemical tests by

the voluntary operation of a motor vehicle upon the

highways of this state.




1983 Op. Att'y Gen. No. 8. The opinions of nearby states appear to

recognize the notion that unless otherwise required by statute,

parental consent or notification is not required under implied

consent statutes. See Stefano v. Commissioner of Public Safety,

358 N.W.2d 83 (Minn. App. 1984)(stating that implied consent

applies equally to adults and minors, so there is no requirement of

parental notification). See also Olson v. North Dakota Dept. of

Transportation Dir., 523 N.W.2d 258 (N.D. 1994)(stating that

implied consent of minor is limited when there is a statutory

obligation to notify parents). However, the previous Attorney

General Opinion also stated that:




It could be argued that since minors have statutorily

consented to the withdrawal of blood in this particular

situation, there should be no necessity of contacting the

parents of a minor child to obtain their consent.

However, despite the legality of this position, it does

not necessarily relieve medical personnel of their own

responsibilities and obligations to whatever standards

are imposed by their own profession or employer.

Consequently, it is our opinion that a law enforcement

officer cannot compel such an individual to withdraw

blood against his or her volition.




1983 Op. Att'y Gen. No. 8.




Therefore, given the plain language of the statute, and for

the same reasons articulated in the previous Attorney General

Opinion, hospitals and medical personnel are legally authorized to

draw blood from a minor without parental consent or notification.

However, there is no statutory provision which requires hospitals

or medical personnel to draw blood from a minor without parental

consent or notification. Furthermore, there is no statutory

provision to allow a law enforcement officer to compel hospitals or

medical personnel to draw blood from a minor without parental

consent or notification.




Sincerely,






DON STENBERG

Attorney General








James H. Spears

Assistant Attorney General