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AGO Opinion 95030

April 11, 1995
Opinion 95030


SUBJECT:
Whether State law requires that a peace officer have a Nebraska operator's license.

REQUESTED BY:
Senator Michael T. Avery
Nebraska State Legislature

WRITTEN BY:
Don Stenberg, Attorney General
Ronald D. Moravec, Assistant Attorney General



You have asked if State law requires that a peace officer possess a valid Nebraska operator's license to perform his or her duties. There are no specific laws addressing this issue. It is our opinion that a peace officer, like any citizen, must have a valid operator's license which has been issued by the State of his or her residence.

The Motor Vehicle Operator's License Act (License Act) Neb. Rev. Star.. §§ 60-462 to 60-4,188, is instructive in answering your question. Neb. Rev. StaL § 60-484(1) (Cure. Supp. 1994) provides in part, "... [N]o resident of the State of Nebraska shall operate a motor vehicle upon the alleys or highways of the State of Nebraska until the person has obtained an operator's license for that purpose... " The License Act does not define the term resident, but Nebraska election laws and Supreme Court decisions generally define a residence as the place where a person has established a home, is habitually present at that location, and when they leave they intend to return to that location, see Neb. Rev. StaL § 32-107 (1993): Wray v. Wray, 149 Neb. 376, 31 N.W.2d 228 (1948).




The License Act defines a non-resident as a person who is not a resident of the state, Neb. Rev. Star. § 60-472 (1993), and provides the non-resident with the privilege of operating a motor vehicle in Nebraska, under the general motor vehicle laws, "but in no event shall such immunity extend beyond a period of thirty days continuous residence in the State of Nebraska." Neb. Rev. Star. § 60-488(I) (1993). The State's grant of immunity to a non-resident is conditioned upon that person having a valid operator's license from the state of their residence. § 60-488(2)(a).

A peace officer seeking admission to the Nebraska Law Enforcement Training Center must, amongst other criterion, possess a valid motor vehicle operator's or chauffeur's license. Neb. Rev. Star. § 81-1410(2)(d) (1994). That condition does not require the license to be one issued by the State of Nebraska. If the. Legislature had required the peace officer to possess a valid Nebraska operator's license, that would have legislatively mandated that only Nebraska residents could be peace officers.



Sincerely,



DON STENBERG
Attorney General