Johnson v. Neth

the sum of $168,000 plus interest at 16 percent from January
5, 2006.
VI. CONCLUSION
For each of the above reasons, we affirm as modified.
A ffirmed As modified.
JeremiAh C. Johnson, Appellee , v. beverly neth ,
direCtor , depArtment of motor vehiCles
of the stAte of nebrAskA, AppellAnt.
758 N.W.2d 395
Filed December 12, 2008. 	No. S‑07‑530.
1. Administrative Law: Motor Vehicles: Jurisdiction: Proof: Appeal and Error.
Whether the sworn report of a law enforcement officer is sufficient to confer
jurisdiction on the Department of motor Vehicles is a question of law, and
an appellate court reaches a conclusion independent of that reached by the
lower court.
2. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Police Officers and Sheriffs. In an administrative license revocation proceeding,
the sworn report of the arresting officer must, at a minimum, contain the informa‑
tion specified in the applicable statute, in order to confer jurisdiction.
3. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Affidavits: Words and Phrases. Sworn reports in administrative license revoca‑
tion proceedings are, by definition, affidavits.
4. Affidavits: Words and Phrases. An affidavit is a written or printed declaration
or statement of facts, made voluntarily, and confirmed by the oath or affirmation
of the party making it.
5. 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.
6. Public Officers and Employees: Evidence. The certification of a notary public’s
official duties, over his or her signature and official seal, is received by the courts
as presumptive evidence of the facts certified.
7. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Jurisdiction. A sworn report that fails to fully comply with the requirements of
the administrative license revocation statutes does not confer jurisdiction upon the
director of the Department of motor Vehicles to revoke a motorist’s license.
Appeal from the District Court for Buffalo County: John p.
iCenogle, Judge. Affirmed.
886 	276 NEBRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

Jon Bruning, Attorney General, and milissa Johnson‑Wiles
for appellant.
Greg C. harris for appellee.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACk , and miller-lermAn, JJ.
Wright, J.
NATURE OF CASE
The director of the Nebraska Department of motor Vehicles
(DmV) appeals from the judgment of the Buffalo County
District Court which vacated the director’s order revoking the
driver’s license of Jeremiah C. Johnson. The court found that
because the notary failed to insert the name of the acknowl‑
edging party in the attestation clause on the sworn report, the
DmV did not have jurisdiction to proceed with the administra‑
tive license revocation procedures. We affirm.
SCOPE OF REVIEW
[1] Whether the sworn report of a law enforcement officer
is sufficient to confer jurisdiction on the DmV is a question of
law, and an appellate court reaches a conclusion independent
of that reached by the lower court. Moyer v. Nebraska Dept. of
Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008).
FACTS
On December 17, 2006, Johnson was stopped by Sgt. Colin
Wilke, a police officer with the kearney Police Department,
after Johnson made an improper U‑turn. Upon contacting
Johnson, Wilke noticed that the odor of an alcoholic beverage
was coming from the vehicle and that Johnson’s eyes were
glassy and watery. Wilke asked Johnson to submit to field
sobriety tests. While Wilke was explaining the “one‑leg stand,”
Johnson repeatedly picked up his foot, even after Wilke told
him to wait for the explanation. On the nine‑step, heel‑to‑toe
test, Johnson took nine steps in each direction, but Wilke said
Johnson did not turn as asked and did not touch heel‑to‑toe at
least two or three times. Johnson was able to correctly recite
the alphabet.
JOhNSON v. NETh 	887
Cite as 276 Neb. 886

Based on Johnson’s driving, the appearance of his eyes,
the field sobriety tests, and the odor of alcohol, Wilke asked
Johnson to submit to a preliminary breath test and explained
that if Johnson refused, he would be arrested. Johnson refused.
Wilke arrested Johnson, read the postarrest chemical advise‑
ment form, and asked him to submit to a blood test. Wilke
explained that refusal to submit to a blood test would result in
a separate charge. Johnson indicated that he understood, and he
refused to submit to the test. Wilke took Johnson to jail.
Wilke 	completed 	a 	“Notice/Sworn 	Report/Temporary
License” (sworn report). he testified that he signed it in the
presence of a notary. The notary placed her seal on the origi‑
nal. Wilke read the verbal notice of revocation to Johnson and
placed a copy of the sworn report with Johnson’s property at
the jail. The sworn report was received by the DmV within the
10‑day statutory timeframe.
Johnson filed a petition for an administrative hearing, at
which hearing the sworn report was received into evidence.
It indicates that Johnson was arrested because he made an
improper U‑turn, smelled of alcoholic beverage, failed field
sobriety tests, and refused preliminary breath and blood tests.
The form also indicates that Johnson refused to submit to a
chemical test and was read the verbal notice of revocation. The
attestation block states:
This foregoing instrument was acknowledged before me
this 	17 	day of 	Dec 	, 	2006 	by
_______________________________________________
Peace Officer name and badge number
_______________________________________________
Peace Officer name and badge number
notAry publiC’s signAture /s/ Robbi L. DeWeese
The notary seal is stamped beneath the signature and states that
her commission expires October 20, 2008.
The hearing officer recommended that the director revoke
Johnson’s driver’s license for the statutory period. The direc‑
tor adopted the recommendation and ordered Johnson’s license
revoked for 1 year, effective January 16, 2007.
888 	276 NEBRASkA REPORTS

Johnson appealed from the order of revocation to the Buffalo
County District Court. he alleged that the officer lacked prob‑
able cause to require him to submit to a chemical test or to
arrest him. Johnson also alleged that the sworn report was not
completed in conformity with the statutory laws applicable to
notarized documents.
During the administrative hearing, the DmV offered the
testimony of Wilke, the arresting officer, who testified that he
was physically in the presence of the notary when he signed
the sworn report. The district court found that although Wilke
stated that the notary acknowledged his signature, the notary
made no specific reference to the person who appeared before
her. The court concluded that without the testimony of the
notary, the State was, in effect, offering evidence that allowed
Wilke to serve as his own notary. “It is the officer testifying
as to the acts and intents of the notary and not the notary.” It
found that the failure to properly complete the notary require‑
ments was not a minor error. The court vacated the director’s
order revoking Johnson’s driving privileges, and the direc‑
tor appeals.
ASSIGNmENT OF ERROR
The director assigns as error the district court’s vacating the
order revoking Johnson’s driving privileges.
ANALYSIS
The issue is whether the sworn report was properly acknowl‑
edged, because the notary did not insert the acknowledging
party’s name in the attestation clause.
A sworn report must be forwarded to the director by the
arresting officer if a person who has consented to chemical
testing is found to be under the influence of alcohol or if a
person refuses to consent to chemical testing. See Neb. Rev.
Stat. § 60‑498.01 (Reissue 2004). The sworn report must
state that the person was arrested pursuant to Neb. Rev. Stat.
§ 60‑6,197(2) (Reissue 2004) and the reason for the arrest, that
the person was requested to submit to the required test, and
either that the person submitted to the required test and the
JOhNSON v. NETh 	889
Cite as 276 Neb. 886

results of the test or that the person refused to submit to the
required test. See § 60‑498.01.
[2] In an administrative license revocation proceeding, the
sworn report of the arresting officer must, at a minimum, con‑
tain the information specified in the applicable statute, in order
to confer jurisdiction. Hahn v. Neth, 270 Neb. 164, 699 N.W.2d
32 (2005). Johnson argued, and the district court agreed, that
the report was not properly sworn because it did not state that
Wilke had acknowledged it before the notary.
[3‑6] Sworn reports in administrative license revocation
proceedings are, by definition, affidavits. Moyer v. Nebraska
Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924
(2008). An affidavit is a written or printed declaration or state‑
ment of facts, made voluntarily, and confirmed by the oath or
affirmation of the party making it. Id. 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. Id. however, an affidavit does not require a notary
to confirm the truth of the facts stated in the affidavit; rather,
the certificate, also known as a jurat, confirms only that the
affiant appeared before the notary, attested to the truth of his
or her statements, and signed the affidavit. Id. See, also, In re
Interest of Fedalina G., 272 Neb. 314, 721 N.W.2d 638 (2006).
The certification of a notary public’s official duties, over his or
her signature and official seal, is received by the courts as pre‑
sumptive evidence of the facts certified therein. Hass v. Neth,
265 Neb. 321, 657 N.W.2d 11 (2003). See, also, Neb. Rev. Stat.
§ 64‑107 (Reissue 2003).
In Moyer, supra, the district court determined that the
“sworn report” was never sworn because the notary did not
place the arresting officer under oath. This court held that the
signature of the arresting officer and the notarization of the
signature were sufficient to make the sworn report valid. We
noted that the arresting officer signed the report and testified
it was signed in the presence of a notary and that the report
was notarized.
No other action was required by either [the arresting offi‑
cer] or the notary. The notary was not required to confirm
the truth of the statements; the very fact that [the arresting
890 	276 NEBRASkA REPORTS

officer] signed the report in the presence of a notary and
that her signature was in fact notarized was sufficient as
an oath or affirmation.
Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. at 692,
747 N.W.2d at 927.
The case at bar presents a different question: Did the fail‑
ure to include the name of Wilke as the acknowledging party
invalidate the sworn report? We conclude that it did. Wilke
signed the report, as did the notary. The notary affixed a stamp
indicating her name and the expiration date of her commission.
She indicated that the “foregoing instrument was acknowledged
before me this 17 day of Dec, 2006 by.” Between the acknowl‑
edgment phrase and the notary’s signature are two lines which
are labeled “Peace Officer name and badge number.” These
lines are blank.
[7] A sworn report that fails to fully comply with the
requirements of the administrative license revocation statutes
does not confer jurisdiction upon the director to revoke a
motorist’s license. See Hahn v. Neth, 270 Neb. 164, 699
N.W.2d 32 (2005). There, the arresting officer did not check
the box stating that the driver was requested to submit to the
required test and we found that the report did not comply with
the requirements of Neb. Rev. Stat. § 60‑6,205(3) (Cum. Supp.
2002) (now at § 60‑498.01). In considering at what point an
omission on a sworn report becomes a jurisdictional defect, as
opposed to a technical one, we concluded that “the test should
be whether, notwithstanding the omission, the sworn report
conveys the information required by the applicable statute.”
Hahn v. Neth, 270 Neb. at 171, 699 N.W.2d at 38. Therefore,
the sworn report must, at a minimum, contain the information
specified in the applicable statute in order to confer jurisdic‑
tion. “The statutory requirements are not onerous; an arrest‑
ing officer need only complete a form designed to convey
the required information and swear to the information thus
conveyed.” Id.
In this case, the attestation clause is not complete because
there is no name listed in the acknowledgment. Statutes gov‑
erning acknowledgments provide that the person taking an
acknowledgment shall certify that
JOhNSON v. NETh 	891
Cite as 276 Neb. 886

(1) [t]he person acknowledging appeared before him
and acknowledged he executed the instrument; and
(2) [t]he person acknowledging was known to the per‑
son taking the acknowledgment or that the person taking
the acknowledgment had satisfactory evidence that the
person acknowledging was the person described in and
who executed the instrument.
Neb. Rev. Stat. § 64‑203 (Reissue 2003).
The form of a certificate of acknowledgment used by a
notary is recognized in Nebraska if the certificate is in a form
prescribed by the laws of this state or of the place in which the
acknowledgment is taken, or the certificate contains the words
“acknowledged before me,” or their substantial equivalent. Neb.
Rev. Stat. § 64‑204 (Reissue 2003). The words “acknowledged
before me” mean that the person acknowledging appeared
before the person taking the acknowledgment, that he or she
acknowledged he or she executed the instrument, that the
instrument was executed for the purposes stated in the instru‑
ment, and that the person taking the acknowledgment either
knew or had satisfactory evidence that the person acknowledg‑
ing was the person named in the instrument or certificate. Neb.
Rev. Stat. § 64‑205 (Reissue 2003).
State law also prescribes the forms to be used for acknowl‑
edgment in Neb. Rev. Stat. § 64‑206 (Reissue 2003). An
acknowledgment completed by a public officer should state:
State of __________
County of ___________
The foregoing instrument was acknowledged before me
this (date) by (name and title of position).
(Signature of Person Taking Acknowledgment)
(Title or Rank)
(Serial Number, if any)
This court has not previously addressed the requirements
for proper acknowledgment of a signature. The U.S. Court
of Appeals for the Sixth Circuit held that an acknowledg‑
ment for a deed of trust was invalid because the bankruptcy
debtors’ names were omitted from the notarization section. In
re Biggs, 377 F.3d 515 (6th Cir. 2004). The In re Biggs court
892 	276 NEBRASkA REPORTS

cited In re Crim, 81 S.W.3d 764 (Tenn. 2002), a Tennessee
case in which a wife attempted to sign a deed of trust on
behalf of her husband using a power of attorney. There, the
notary used an acknowledgment form indicating that both
the husband and the wife had personally appeared before
him and that the notary had acknowledged their signatures.
In re Crim, supra. The Tennessee Supreme Court found that
because the notary did not use the prescribed statutory form,
the certificate of acknowledgment did not comply with state
law. Id.
The In re Biggs court stated that the omission of the names
in the acknowledgment form placed in doubt the integrity
of the acknowledgment. “[W]ho, if anyone, is doing the
acknowledging? Failing to name the individuals who signed
the deed of trust bears directly on the ability of a subsequent
purchaser of real property to verify that the instrument was
signed by the true property owners.” In re Biggs, 377 F.3d
at 519. The acknowledgment did not comply with Tennessee
law. “The ‘substantial compliance’ test ‘addresses the uninten‑
tional omission of words by the officer taking an acknowledg‑
ment,’ [citation omitted], not the unintentional omission of
the names of the acknowledging individuals.” Id. (emphasis
in original).
The argument was made that the names of the individuals
were included in the deed of trust, which should satisfy
the requirement of including the names in the acknowl‑
edgment. The 	Court 	of Appeals 	disagreed, 	finding 	that
allowing such omission would eliminate the acknowledg‑
ment requirement.
No one doubts that the names of the individuals on the
deed of trust are the names of the individuals who should
appear on the acknowledgment. The very point of the
acknowledgment is to have their signatures confirmed in
the presence of a notary. When notaries, however, merely
take pre‑printed forms and purport to notarize them with‑
out stating whose signatures they have notarized and who,
if anyone, appeared before them, they not only undermine
the Tennessee legislature’s salutary purpose in creating
JOhNSON v. NETh 	893
Cite as 276 Neb. 886

statutorily‑approved forms but also fail to accomplish
the signal reason for having an acknowledgment in the
first place.
In re Biggs, 377 F.3d at 520 (emphasis in original).
Recognizing the presumption that a sworn public official has
acted lawfully, the Sixth Circuit determined that the presump‑
tion applies “when notaries perform the core functions of their
job, not when they fail to perform them.” Id. The court held
that the deed of trust could be voided because the acknowledg‑
ment was not valid.
Whether the sworn report of a law enforcement officer is
sufficient to confer jurisdiction on the DmV is a question of
law, and an appellate court reaches a conclusion independent
of that reached by the lower court. Moyer v. Nebraska Dept.
of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008). As
noted earlier, a sworn report in an administrative license revo‑
cation 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 mak‑
ing the same. See id. The report in this case does not show that
it was sworn to by the law enforcement officer.
We conclude that the acknowledgment on the sworn report,
which did not set forth the name of the individual making the
acknowledgment, i.e., the arresting officer, did not substantially
comply with the requirements of Nebraska law, and therefore,
the acknowledgment was fatally defective. Because the report
was not properly acknowledged, it is not a sworn report as
required by statute. Thus, the DmV has not made a prima facie
case for license revocation.
CONCLUSION
For the reasons set forth herein, we affirm the judgment of
the district court.
A ffirmed.
C onnolly, J., concurring.
We have yet another case requiring us to clarify what
constitutes 	a 	valid 	sworn 	report. 	Under 	Neb. 	Rev. 	Stat.
§ 60‑498.01 (Reissue 2004), once an officer timely submits a
sworn report, the DmV has established a prima facie case for
894 	276 NEBRASkA REPORTS

revoking a driver’s license.1 In Hahn v. Neth,2 we discussed
cases holding that a completed but unsworn statement is a
jurisdictional defect. We explained these courts’ reasoning
as follows:
[W]here revocation was automatic upon receipt of a
sworn report if the licensee did not request a hearing,
the requirement that the report be “sworn” was essential
to the legislative purpose of providing a reliable basis
for administrative action and was therefore mandatory. .
. . “By requiring a sworn report, the [legislative body]
affords some measure of reliability and protection to a
licensee, and the director’s ignoring this mandate thwarts
this protection. The sworn report, therefore, is essential
to the validity of the director’s subsequent actions. If the
director does not receive a sworn report, his subsequent
actions are void.”3
We recently emphasized the above reasoning in Arndt v.
Department of Motor Vehicles.4 Finally, in Hass v. Neth,5 we
held that the sworn statement, as an affidavit, must show on its
face evidence that it was duly sworn to by the officer making
the report.
These statements clearly put the DmV on notice that a
proper certification, as an essential component of the arrest‑
ing officer’s sworn report, is a jurisdictional requisite in an
administrative law review proceeding. And we have stated
more than once that because of the significant procedural
benefit the Legislature has conferred on the DmV under
§ 60‑498.01, we require strict compliance with the applicable
1 See McPherrin v. Conrad, 248 Neb. 561, 537 N.W.2d 498 (1995), disap-
proved on other grounds, Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32
(2005).
2 Hahn, supra note 1.
3 Id. at 170, 699 N.W.2d at 37‑38 (citations omitted).
4 Arndt v. Department of Motor Vehicles, 270 Neb. 172, 699 N.W.2d 39
(2005).
5 Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003).
JOhNSON v. NETh 	895
Cite as 276 Neb. 886

rules and regulations.6 Thus, the certification is subject to
strict compliance because the sworn statement is the only
procedural protection afforded to a driver that a proper basis
exists for the revocation. The multitude of appeals that have
arisen regarding sworn reports have proved the necessity of
a strict compliance rule.7 And yet four more cases related to
certification await the Court of Appeals.8 The DmV’s repeated
failure to comply with the requirements of a sworn report is
a source of both frustration and wonder. The requirements are
not an onerous burden, given the benefit the DmV receives
in establishing its prima facie case by simply complying
with this requirement. In golf parlance, the sworn report is
a “gimme.”
Furthermore, I do not believe this court should tortuously
characterize material omissions in a certificate of acknowledg‑
ment as a technical defect. Such reasoning could have unin‑
tended consequences in other areas of law. Under the “law of
unintended consequences,” if this court were to conclude that
the certification here was sufficient under a rule of strict com‑
pliance, it would be hard to conclude that a material omission
in other types of sworn instruments was a fatal defect. Nor
do I believe that our case law in other contexts supports the
dissent’s position that the omission of the acknowledger’s name
is a technical defect.
It is true that a notary’s certification accompanied by the
notary’s signature and official seal is presumptive evidence of
6 See Hahn, supra note 1, quoting Morrissey v. Department of Motor
Vehicles, 264 Neb. 456, 647 N.W.2d 644 (2002), disapproved on other
grounds, Hahn, supra note 1.
7 See, e.g., Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747
N.W.2d 924 (2008); Hass, supra note 5; Stoetzel v. Neth, 16 Neb. App. 348,
744 N.W.2d 465 (2008); Thomsen v. Nebraska Dept. of Motor Vehicles, 16
Neb. App. 44, 741 N.W.2d 682 (2007); Forgey v. Nebraska Dept. of Motor
Vehicles, 15 Neb. App. 191, 724 N.W.2d 828 (2006); Valeriano-Cruz v.
Neth, 14 Neb. App. 855, 716 N.W.2d 765 (2006).
8 See, Armstrong v. Neth, case No. A‑07‑531; Hubbard v. Neth, case No.
A‑07‑787; Brown v. Department of Motor Vehicles, case No. A‑08‑133;
and Downing v. Neth, case No. A‑08‑351.
896 	276 NEBRASkA REPORTS

the facts stated in the certification.9 But there is a critical dif‑
ference between presuming that a notary took an acknowledg‑
ment from the person whose name is stated on the certification
and supplying by presumption essential statutory requisites
omitted in the certification.10 Other courts have explicitly held
that the identity of the party making the acknowledgment is an
essential element that must appear in the certificate.11 We have
implicitly held the same.
McMaster v. Wilkinson12 is illuminating. There, an election
result was contested, and some issues involved the validity of
absentee ballots. The law required the ballots to be sealed in an
envelope bearing voter information, including the voter’s name
and the notary public’s certificate of acknowledgment. For one
ballot, the notary signed the envelope attesting that the voter
had signed and sworn to its execution in his presence. But the
notary failed to identify the voter in the appropriate certifica‑
tion line and failed to affix his seal and official title in that part
of the certification. We held there was not substantial compli‑
ance with the law. The fact that the ballot could be identified
as the voter’s did not change our judgment that the ballot was
properly excluded.
It is also correct that we have accepted substantial com‑
pliance with certification rules in some contexts.13 But an
acknowledgment is fatally defective if “[i]t is wanting in that
9 See, Neb. Rev. Stat. § 64‑107 (Reissue 2003); Moyer, supra note 7; Smith
v. Johnson, 43 Neb. 754, 62 N.W. 217 (1895).
10 See, Keeling v. Hoyt, 31 Neb. 453, 48 N.W. 66 (1891); Becker v. Anderson,
11 Neb. 493, 9 N.W. 640 (1881); Dorsey v. Brunswick Corp., 69 Wash. 2d
511, 418 P.2d 732 (1966); 1 Am. Jur. 2d Acknowledgments § 33 (2005).
11 See, In re Biggs, 377 F.3d 515 (6th Cir. 2004); In re Order of Sammons,
Co. Superintendent of Schools, 242 minn. 345, 65 N.W.2d 198 (1954);
Cannon et al. v. Deming, Sheriff, et al., 3 S.D. 421, 53 N.W. 863 (1892);
Goad v. Walker, 73 W. Va. 431, 80 S.E. 873 (1914).
12 McMaster v. Wilkinson, 145 Neb. 39, 15 N.W.2d 348 (1944), overruled in
part on other grounds, State ex rel. Brogan v. Boehner, 174 Neb. 689, 119
N.W.2d 147 (1963).
13 See, e.g., Powers v. Spiedel, 84 Neb. 630, 121 N.W. 968 (1909); Buck v.
Gage, 27 Neb. 306, 43 N.W. 110 (1889).
JOhNSON v. NETh 	897
Cite as 276 Neb. 886

which is evidently of the very essence of the statutory require‑
ment . . . .”14 As the majority opinion states, under Neb. Rev.
Stat. § 64‑203 (Reissue 2003), certification of the acknowl‑
edger is of the very essence of the statutory requirements for a
valid acknowledgment.
Before quitting the subject, I believe that the dissent’s reli‑
ance on the Idaho Supreme Court case is misplaced. While that
court was willing to overlook the omission of the acknowl‑
edger’s name in a certificate of acknowledgment accompanying
a deed,15 clearly, not all courts agree with that position.16 Nor
does this court’s case law point in that direction.17
more important, the reasoning of the Idaho Supreme Court
does not apply here. The court concluded that the purpose of an
acknowledgment accompanying a mortgage “is to provide pro‑
tection against the recording of false instruments.”18 Regardless
whether we agree with the Idaho Supreme Court’s conclusion
in a case involving the recording of deeds, the purpose of the
acknowledgment here is different—to ensure a proper basis
for a license revocation and thereby confer jurisdiction for the
DmV’s action.
In sum, compliance with § 60‑498.01 is not astrophysics. We
should hold the DmV to strict compliance.
gerrArd and miller -lermAn, JJ., join in this concurrence.
14 Spitznagle v. Vanhessch, 13 Neb. 338, 340, 14 N.W. 417, 417‑18 (1882).
15 See Farm Bureau Fin. Co., Inc. v. Carney, 100 Idaho 745, 605 P.2d 509
(1980).
16 See, In re Biggs, supra note 11; Seale Motor Co. Inc. v. Stone, 218 S.C.
373, 62 S.E.2d 824 (1950); Dorsey, supra note 10.
17 See, McMaster, supra note 12; Dawson County State Bank v. Durland, 114
Neb. 605, 209 N.W. 243 (1926); Keeling, supra note 10; Spitznagle, supra
note 14.
18 See Carney, supra note 15, 100 Idaho at 750, 605 P.2d at 514.
heAviCAn, C.J., dissenting.
I respectfully dissent. The majority concludes that because
the acknowledgment on the sworn report did not set forth the
name of the arresting officer, such acknowledgment failed to
substantially comply with Nebraska law. As such, the major‑
ity holds that the sworn report was insufficient to confer
898 	276 NEBRASkA REPORTS

jurisdiction on the DmV. For the reasons stated in my dissent
in Snyder v. Department of Motor Vehicles,1 I do not believe
the technical defect in this sworn report would divest the DmV
of jurisdiction. But even assuming that a technical defect in a
sworn report could prevent the DmV from revoking a license,
I do not believe any defect exists in this case.
It is well established that deficiencies in the certificate of
acknowledgment will not render a certificate of acknowledg‑
ment defective if the alleged deficiency can be cured by refer‑
ence to the instrument itself.2 And in this case, it is possible
to determine whose signature was being acknowledged in
the certificate of acknowledgment simply by reference to the
remainder of the sworn report. Wilke is the only signatory to
the sworn report. Wilke’s printed name, badge number, signa‑
ture, and address appear just above the certificate of acknowl‑
edgment on the sworn report. It is clear from a review of the
sworn report that the only signature the notary could have been
acknowledging was Wilke’s. There is no contention that Wilke
did not sign the document or that his signature was not affixed
in the presence of the notary. And Wilke himself testified that
he signed the document in the presence of the notary. Given
this, I would conclude that the certificate of acknowledgment
substantially complied with Nebraska law.
The majority’s conclusion that the omission of Wilke’s name
was fatal to the sworn report appears to be rooted in the fear
that such omission places in doubt the integrity of the notary’s
acknowledgment. While I agree there is case law, including
that cited by the majority, which could give rise to the fears of
the majority, I do not share that concern in this case.
As an initial matter, while I agree that the cases cited by
the majority conclude that an omission such as the one in
1 Snyder v. Department of Motor Vehicles, 274 Neb. 168, 736 N.W.2d 731
(2007).
2 See, e.g., Farm Bureau Fin. Co., Inc. v. Carney, 100 Idaho 745, 605 P.2d
509 (1980); Gardner v. Incorporated City of McAlester, 198 Okla. 547, 179
P.2d 894 (1946); Coates v. Smith, 81 Or. 556, 160 P. 517 (1916); Milner v.
Nelson, 53 N.W. 405 (Iowa 1892). See, also, 1A C.J.S. Acknowledgments
§ 59 (2005); 1 Am. Jur. 2d Acknowledgments § 49 (2005).
JOhNSON v. NETh 	899
Cite as 276 Neb. 886

this case would be fatal to an instrument, I also note that
these cases may be distinguishable. Both In re Biggs3 and In
re Crim4 involved a mortgage or a deed. In such instances,
because the rights of subsequent purchasers could hinge on
the validity of the signatures in question, it might be of more
import to have an acknowledgment more fully comply with
applicable law. Such concern is not present in cases involving
sworn reports.
With respect to concerns about the integrity of the notarial
duty, I would agree with the Idaho Supreme Court in Farm
Bureau Fin. Co., Inc. v. Carney.5 In that case, the court touched
on the integrity of a notary’s acknowledgment:
The sine qua non of this statutory requirement is the
involvement of the notary, a public officer in a position of
public trust. If the notary faithfully carries out his statu‑
tory duties, it makes little difference whether he remem‑
bers to fill in the blanks in the certificate. Similarly, if
the notary conspires with a forger, or fails to require the
personal appearance of the acknowledger, or is negligent
in ascertaining the identity of the acknowledger, the statu‑
tory scheme is frustrated whether the form is completely
filled in or not.
. . . .
. . . Whether the certificate blanks are empty or full is
not the significant fact. The key to the statutory safeguard
is the integrity of the notary in the proper discharge of
notarial duties by requiring the signatories to personally
appear before him and acknowledge that they did in fact
execute the document.6
Concerns about the integrity of the notarial process could
conceivably be present each time a notary acknowledges a sig‑
nature. The notarial process works because we presume that the
notary is fulfilling his or her notarial duties. The Farm Bureau
3 In re Biggs, 377 F.3d 515 (6th Cir. 2004).
4 In re Crim, 81 S.W.3d 764 (Tenn. 2002).
5 Farm Bureau Fin. Co. v. Carney, supra note 2.
6 Id. at 750, 605 P.2d 514.
900 	276 NEBRASkA REPORTS

Fin. Co., Inc. court also highlights this presumption of regular‑
ity which is afforded to the actions of public officials, includ‑
ing notaries, and concludes that the notary’s acknowledgment
was subject to such a presumption.7 In Nebraska, like in Idaho,
in the absence of evidence to the contrary, it may be presumed
that public officers faithfully perform their official duties and
that absent evidence showing misconduct or disregard of law,
the regularity of official acts is also presumed.8 As discussed
above, there is no evidence showing that Wilke did not sign
the document in the presence of the notary. There is simply no
showing of any misconduct or disregard of law with respect to
the notary’s actions.
For the above reasons I would conclude that the certificate
of acknowledgment in this case substantially complies with
Nebraska law and would apply the presumption of regularity to
the actions of the notary. As such, I would find that the omis‑
sion of Wilke’s name from the certificate of acknowledgment
was not fatal to the sworn report in this case. I would therefore
reverse the decision of the district court and uphold the DmV’s
revocation of Johnson’s driver’s license.
7 See id.
8 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
stAte of nebrAskA, Appellee , v.
mArvin r. Wenke , AppellAnt.
758 N.W.2d 405
Filed December 12, 2008. 	No. S‑07‑1036.
1. Motions to Suppress: Search and Seizure: Appeal and Error. In considering
a trial court’s ruling on a motion to suppress evidence obtained by a search, an
appellate court first determines whether the search was illegal. If so, the court
must determine whether the evidence that the defendant seeks to suppress is suf‑
ficiently attenuated from the illegal search.
2. Motions to Suppress: Appeal and Error. An appellate court will uphold the
trial court’s ruling on a motion to suppress unless the trial court’s findings of fact
are clearly erroneous. In making this determination, the appellate court does not
reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes
STATE v. WENkE 	901
Cite as 276 Neb. 901