Bowman v. Neth

right. Biloff affirmatively indicated that he understood that he
was waiving his right to a suppression hearing.
Biloff’s assertions concerning his counsel’s failure to inves-
tigate have no merit.
VI. CONCLUSION
Because Biloff’s postconviction motion alleged only conclu-
sions and because the record and files in this case affirmatively
establish that Biloff was not entitled to relief, we find that the
district court did not err in denying Biloff an evidentiary hear-
ing or in denying his motion. We therefore affirm.
A ffirmed.
L evi J. BowmAn, AppeLLAnt, v. BeverLy neth ,
director , StAte of neBrASkA, depArtment
of motor vehicLeS, AppeLLee .
778 N.W.2d 751
Filed December 22, 2009. 	No. A-09-110.
1. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Evidence: Jurisdiction. The sworn report of the arresting officer is received into
the record by the hearing officer as the jurisdictional document of a license revo-
cation hearing, and upon the receipt of the sworn report, the order of revocation
by the director of the Department of Motor Vehicles has prima facie validity.
2. Records: Evidence: Waiver. When the record does not clearly indicate that an
exhibit has been received into evidence, a party objecting to the receipt of the
exhibit waived its objection when it did not insist upon a ruling on the objection,
and the evidence is in the record for consideration the same as other evidence.
3. Affidavits: Proof: Public Officers and Employees. An affidavit must bear on its
face, by the certificate of the officer before whom it is taken, evidence that it was
duly sworn to by the party making the same.
4. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Evidence: Affidavits. A sworn report in an administrative license revocation
proceeding is, by definition, an affidavit, which must bear on its face, by the
certificate of the officer before whom it is taken, evidence that it was duly sworn
to by the party making the same.
5. Affidavits. The test for proper acknowledgment of an affidavit is whether the
certificate of acknowledgment substantially complies with the requirements of
Nebraska law.
Appeal from the District Court for Cass County: dAnieL e.
BryAn, Jr ., Judge. Affirmed.
222 	18 NeBrASkA AppeLLATe repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

Julie e. Bear, of reinsch, Slattery & Bear, p.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and Milissa Johnson-Wiles
for appellee.
irwin, SieverS, and cArLSon, Judges.
cArLSon, Judge.
INTrODUCTION
pursuant to this court’s authority under Neb. Ct. r. App.
p. § 2-111(B)(1) (rev. 2008), this case was ordered submitted
without oral argument. Levi J. Bowman appeals from an order
of the district court for Cass County affirming the order of
Beverly Neth, the director of the Department of Motor Vehicles
(Department), revoking Bowman’s driver’s license. On appeal,
Bowman argues that the district court erred in finding that the
Department had jurisdiction to revoke his license. Specifically,
Bowman contends that the court erred in failing to find that
the Department failed to properly offer and receive the sworn
report, by finding that he waived his objection to the sworn
report, by finding that the offer of the sworn report by the
Department establishes a prima facie case and shifted the bur-
den of proof to Bowman, and in finding that the sworn report
had been properly acknowledged by the notary public. For the
reasons set forth below, we affirm.
BACkGrOUND
On September 21, 2008, Officer Todd k. Hammond of the
plattsmouth police Department conducted a traffic stop of
Bowman after he failed to stop at a stop sign. Upon contacting
Bowman, Hammond noticed an odor of alcohol on Bowman’s
person. Bowman told Hammond that he had been drinking
alcohol. Hammond gave Bowman a preliminary breath test,
which Bowman failed. Hammond then arrested Bowman for
driving under the influence of alcohol and minor in possession
of alcohol.
Bowman then submitted to a chemical test of his breath
which indicated that he had a blood alcohol content of .09 of 1
gram per 210 liters of breath. Hammond filled out and signed
BOWMAN v. NeTH 	223
Cite as 18 Neb. App. 222

the sworn report before a notary and sent the report to the
Department. The sworn report contains Hammond’s signature,
and on a blank line under “Names and Badge Numbers of all
Arresting Officers” is handwritten “todd k hAmmond #16.”
(emphasis omitted.) The sworn report bears the signature and
stamp of a general notary and states, “This foregoing instru-
ment was acknowledged before me this 21st day of September,
2008 by Hammond.”
On October 21, 2008, an informal hearing was held before
an officer of the Department. At the beginning of the hearing,
the hearing officer stated, “[T]he only exhibit that I’m marking
is the Notice/Sworn report/Temporary License . . . . So any
objection to the Sworn report?” Bowman objected on foun-
dation. The hearing officer then asked foundational questions
of Hammond. At the close of the hearing, the hearing officer
asked Bowman if he had any further argument, and Bowman
submitted the case.
In the hearing officer’s proposed findings of fact and conclu-
sions of law, he stated that the sworn report had been admit-
ted into evidence as “exhibit 1.” On October 28, 2008, the
director entered an order revoking Bowman’s license. Bowman
appealed to the district court, which affirmed the director’s
order of revocation. Bowman appeals.
ASSIGNMeNTS OF errOr
On appeal, Bowman contends that the district court erred
in finding that (1) the Department had jurisdiction to revoke
Bowman’s driver’s license, as the Department failed to properly
offer and receive the sworn report; (2) he waived his objection
to the sworn report by failing to insist on a ruling after proper
objection to the same; (3) the offer of the sworn report by the
Department established a prima facie case and shifted the bur-
den of proof to Bowman; and (4) the sworn report had been
properly acknowledged by the notary public.
ANALYSIS
Introduction of Sworn Report.
On appeal, Bowman contends that the district court erred
in finding that the Department had jurisdiction to revoke his
driver’s license, as the Department failed to properly offer and
224 	18 NeBrASkA AppeLLATe repOrTS

receive the sworn report, and in finding that Bowman waived
his objection to the sworn report by failing to insist on a ruling
after proper objection to the same. Bowman also argues that
the trial court erred in finding that the offer of the sworn report
by the Department established a prima facie case and shifted
the burden of proof to Bowman.
In affirming the Department’s decision to revoke Bowman’s
license, the district court noted that the hearing officer never
stated his ruling on the admission of exhibit 1, the sworn
report, at the hearing but that the hearing officer ruled on
the admission thereof in his recommendations. The district
court found that Bowman’s failure to insist on a ruling at
the hearing waived his objection to the sworn report and that
the sworn report is in evidence for consideration the same as
other evidence.
[1] The sworn report of the arresting officer is received into
the record by the hearing officer as the jurisdictional docu-
ment of a license revocation hearing, and upon the receipt of
the sworn report, the order of revocation by the director of
the Department has prima facie validity. 247 Neb. Admin.
Code, ch. 1, § 006.01 (2005); Barnett v. Department of Motor
Vehicles, 17 Neb. App. 795, 770 N.W.2d 672 (2009); Yenney
v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 446, 729
N.W.2d 95 (2007). See, also, Neb. rev. Stat. § 60-498.01(7)
(reissue 2004), which states in part, “Upon receipt of the
arresting peace officer’s sworn report, the director’s order of
revocation has prima facie validity and it becomes the peti-
tioner’s burden to establish by a preponderance of the evidence
grounds upon which the operator’s license revocation should
not take effect.”
Bowman argues that the Department failed to prove a prima
facie case because the sworn report was never received by the
hearing officer at the hearing. We disagree. In Scott v. State,
13 Neb. App. 867, 703 N.W.2d 266 (2005), we cited the above
language in § 60-498.01 and held that the Department created
a prima facie case for license revocation by the introduction
of the sworn report of the peace officer. See, also, Morrissey
v. Department of Motor Vehicles, 264 Neb. 456, 647 N.W.2d
644 (2002), disapproved on other grounds, Hahn v. Neth,
BOWMAN v. NeTH 	225
Cite as 18 Neb. App. 222

270 Neb. 164, 699 N.W.2d 32 (2005), and McPherrin v.
Conrad, 248 Neb. 561, 537 N.W.2d 498 (1995), disapproved
on other grounds, Hahn v. Neth, supra, which state that as a
general rule, the offer by the Department of a sworn report
at a license revocation hearing establishes the Department’s
prima facie case and shifts the burden to the driver to refute
such evidence.
In the instant case, the Department clearly offered or intro-
duced the sworn report into evidence at the hearing. At the
beginning of the hearing, the hearing officer stated, “[T]he
only exhibit that I’m marking is the Notice/Sworn report/
Temporary License . . . . So any objection to the Sworn
report?” Bowman objected on foundation. The hearing officer
then asked foundational questions of Hammond. At the close
of the hearing, the hearing officer asked Bowman if he had any
further argument, and Bowman submitted the case. In the hear-
ing officer’s proposed findings of fact and conclusions of law,
he stated that the sworn report had been admitted into evidence
as exhibit 1.
[2] We note that Bowman failed to insist upon a ruling on
his objection. The Nebraska Supreme Court has previously
ruled that when the record does not clearly indicate that an
exhibit has been received into evidence, a party objecting to
the receipt of the exhibit waived its objection when it did
not insist upon a ruling on the objection, and the evidence is
in the record for consideration the same as other evidence.
Diversified Telecom Servs. v. Clevinger, 268 Neb. 388, 683
N.W.2d 338 (2004).
Therefore, because the sworn report was received at the
hearing, the offer of the sworn report established a prima facie
case against Bowman. Bowman’s assignments of error relating
to introduction of the sworn report are without merit.
Notary Acknowledgment.
[3] Bowman contends that the trial court erred in finding
that the sworn report had been properly acknowledged by the
notary public. An affidavit must bear on its face, by the certifi-
cate of the officer before whom it is taken, evidence that it was
226 	18 NeBrASkA AppeLLATe repOrTS

duly sworn to by the party making the same. Johnson v. Neth,
276 Neb. 886, 758 N.W.2d 395 (2008).
The sworn report contains Hammond’s signature, and on a
blank line under “Names and Badge Numbers of all Arresting
Officers” in the body of the report is handwritten “todd k
hAmmond #16.” (emphasis omitted.) In the acknowledgment
section, there is a line requesting the “peace Officer[’s] name
and badge number.” In that line, only Hammond’s last name
is written and not his first name or badge number. Bowman
argues that “[i]t is impossible to know by the words [sic]
‘Hammond’ who is doing the acknowledging.” Brief for appel-
lant at 19.
In support of his position, Bowman cites to Johnson v.
Neth, supra, where the Supreme Court found that where the
acknowledgment section was left entirely blank, the sworn
report was ineffective for purposes of conferring jurisdic-
tion on the Department. The court noted that the notary was
required to confirm the identity of the officer who signed
the report.
In the instant case, it is possible to tell that the name
“Hammond” refers to the arresting officer. This is not a case
like Johnson v. Neth, where the acknowledgment section was
left entirely blank. Hammond may not have listed his first
name and badge number in the acknowledgment section of the
sworn report, but Hammond’s first name and badge number are
in the report in two other locations.
[4,5] As noted above, a sworn report in an administrative
license revocation proceeding is, by definition, an affidavit,
which must bear on its face, by the certificate of the officer
before whom it is taken, evidence that it was duly sworn to
by the party making the same. See id. The test is whether
the certificate of acknowledgment substantially complies with
the requirements of Nebraska law. See id. The certificate of
acknowledgment in the instant case substantially complies
with the requirements of Nebraska law, and the sworn report
does show that it was sworn to by Hammond. Therefore, we
cannot say that the trial court erred in finding that the sworn
report had been properly acknowledged by the notary public.
BOWMAN v. NeTH 	227
Cite as 18 Neb. App. 222

For this reason, Bowman’s last assignment of error is with-
out merit.
CONCLUSION
After reviewing the record, we conclude that the district
court did not err in finding that the Department had jurisdic-
tion to revoke Bowman’s driver’s license. The Department
did not fail to properly offer and the hearing officer did not
fail to properly receive the sworn report, and Bowman waived
his objection to the admission of the sworn report by fail-
ing to insist on a ruling on his objection. The offer of the
sworn report by the Department established a prima facie
case against Bowman which shifted the burden of proof to
Bowman. Bowman did not present any evidence to rebut the
Department’s case. Additionally, the trial court properly found
that the sworn report had been properly acknowledged by
the notary public. For these reasons, the district court’s order
affirming the Department’s revocation of Bowman’s license is
affirmed in all respects.
A ffirmed.
228 	18 NeBrASkA AppeLLATe repOrTS